concurring.
I concur in the opinion and order reversing the Court of Civil Appeals and affirming that of the trial court. The bar of the dead man’s statute relates only to “parties.” However that term as used in Article 3716, Vernon’s Ann. Civ. Stat., includes one who at the time of trial has a real ownership or beneficial interest in the claim or property which is the subject matter of the litigation. When Dr. Ditto offered to testify as to transactions with his deceased uncle the judge was required to pass upon his competency as a witness. This inquiry resolves itself into a simple question of fact, namely, did Dr. Ditto, at the time he offered his testimony, possess a beneficial interest in the claim asserted by Ditto Investment Company against the estate of James Ditto, Sr., deceased? Although this question is one of fact it relates to the qualification or competency of a witness and hence, in civil cases, the decision lies within the province of the Court. McCormick & Ray, Texas Law of Evidence, Sections 2 and 256.
The trial judge has held that Dr. Ditto was an incompetent witness which necessarily includes the finding that at the time of the trial he had a beneficial interest in the claim asserted against the estate of James Ditto, Sr., deceased. This holding does not constitute an abuse of discretion in view of the record, but is supported by the circumstance that Dr. Ditto was the original holder of the claim and had transferred it to another person prior to the time he offered to testify.
*108The dead man’s statute has been vigorouly attacked both by those who think its exclusionary effect is too limited in that it does not proscribe the testimony of all those who at any time may have had an interest in the disputed claim and by those who seriously question the wisdom of any exclusionary rule based upon pecuniary interest. There is likewise a compromise view that the evidence of holders of claims against a decedent should be received under the safeguard of a precautionary instruction. All these matters are discussed in Texas Law of Evidence by McCormick & Ray, (2d Ed.) Section 337, which sets out a proposed statutory modification of Article 3716. See also Wigmore on Evidence (3rd Ed.) Section 578. However that may be, the statute as written and as it has been construed by this Court in the leading case of Ragsdale v. Ragsdale, 142 Texas 476, 179 S.W. 2d 291, presents this ABC situation. If A has a claim against B and the circumstances giving rise to the claim are known only to A and B; A, upon B’s death, holds a claim which is worthless in his hands because he cannot establish the same in court. However, such claim would have value in the hands of C, an assignee, who could use A’s testimony to establish the claim, providing, of course, A assigns the claim to C and retains no interest therein.
An assignment thus made should receive careful scrutiny. The circumstances in themselves suggest the possibility or even probability that as between A and C, A may retain a secret beneficial interest. Our trial judges should not be required to accept these transactions at their face value but should be allowed to pass upon the credibility of the witness who- asserts he has no further interest in the claim.
Insofar as this Court is concerned, the circumstance that the original transfer was made to the wife has little or no significance, regardless of what weight it might be given by the authority charged with the responsibility of determining the credibility of witnesses. Certainly there is no moral issue raised by the assignment of a just debt to “avoid” the rather arbitrary bar of the statute. I think my brother Garwood has made this abundantly clear. A debt does not become an unjust claim upon the death of the debtor. The statute, however, undoubtedly has as its objective the protection of decedents’ estates from false and unfounded claims, and the fact that the exclusionary operation of the statute may be predicated upon the perhaps unsatisfactory basis of pecuniary interest will not justify its judicial repeal.
*109Under various factual situations it is the policy of the law to require the proponents of a proposition to carry conviction to the trier of facts with his evidence and the mere production thereof, although undisputed, is insufficient for this purpose. In cases involving fiduciaries, the courts place the burden upon the trustee to establish the bona fides of a transaction with the beneficiary. McCormick & Ray, Texas Law of Evidence (2d Ed.) Section 87. Undisputed testimony from an interested witness may be cited as a further example. 41B, Texas Jur. 229, Trial, Civil Cases, Section 193. In Sigmond Rothchild Co. v. Moore, Texas Com. App., 37 S.W. 2d 121, holding approved by the Supreme Court, it appeared that certain personal property had been sold as the property of F. E. Anderson upon the foreclosure of an attachment lien. B. R. Moore claimed that the property belonged to him at the time of the attachment levy and the sale thereunder. Upon the trial of this issue of ownership between Moore and Sigmond Rothchild Co. both Moore and Anderson were held to come within the rule which permits the trier of facts to reject undisputed testimony, although Anderson was asserting that he had no interest in the property.
In Ragsdale v. Ragsdale, supra, it was held that if the transaction, that is, the assignment be “a simulated one for the purpose of circumventing the statute, thus ostensibly qualifying an otherwise incompetent witness” the bar of the statute remains. We are here confronted with a situation in which simulation is easy of accomplishment. Only two persons know if the assignment of claim involved herein is real or simulated. One of these was Dr. Ditto, the other his wife, who is admittedly “interested” in the outcome of this suit. In my opinion it was incumbent upon Dr. Ditto to satisfy the trial judge that he no longer possessed an interest in the claim against his deceased uncle’s estate before he should be permitted to testify as to the transactions with the decedent upon which the claim was based. Having failed to discharge this burden of persuasion, his evidence was properly rejected. I accordingly concur in the judgment reversing the Court of Civil Appeals and affirming that of the trial court.
Opinion delivered January 22, 1958.