Colorado § 13-90-102 - Testimony concerning oral statements made by person incapable of testifying - when allowed - definitions.

§ 13-90-102. Testimony concerning oral statements made by person incapable of testifying - when allowed - definitions.

(1) Subject to the law of evidence, in any civil action or proceeding in which an oral statement of a person incapable of testifying is sought to be admitted into evidence, each party and person in interest with a party shall be allowed to testify regarding the oral statement if:

(a) The statement was made under oath at a time when such person was competent to testify;

(b) The testimony concerning the oral statement is corroborated by material evidence of a trustworthy nature;

(c) The opposing party introduces uncorroborated evidence of related communications through a party or person in interest with a party; or

(d) Such party or person testifies against his or her own interests.

(2) Questions of admissibility that arise under this section shall be determined by the court as a matter of law.

(3) For purposes of this section:

(a) "Corroborated by material evidence" means corroborated by evidence that supports one or more of the material allegations or issues that are raised by the pleadings and to which the witness whose evidence must be corroborated will testify. Such evidence may come from any other competent witness or other admissible source, including trustworthy documentary evidence, and such evidence need not be sufficient standing alone to support the verdict but must tend to confirm and strengthen the testimony of the witness and show the probability of its truth.

(b) "Person incapable of testifying" means any decedent or any person who is otherwise not competent to testify.

(c) "Person in interest with a party" means a person having a direct financial interest in the outcome of the civil action or proceeding, or having any other significant and non-speculative financial interest that makes the person's testimony, standing alone, untrustworthy. In a proceeding to construe, contest, modify, probate, reform, or rescind a governing instrument, as defined in section 15-10-201 (22), C.R.S., "person in interest with a party" does not include:

(I) An attorney who prepared the governing instrument;

(II) A personal representative who is not a successor of the decedent; or

(III) A person whose only interest is an expectation of just compensation for the value of services to be rendered by the person.

Source: L. 1870: p. 63, § 2. G.L. § 2952. G.S. § 3641. L. 07: p. 629, § 1. R.S. 08: § 7267. L. 11: p. 676, § 1. C.L. § 6556. CSA: C. 177, § 2. CRS 53: § 153-1-2. C.R.S. 1963: § 154-1-2. L. 69: p. 1244, § 1. L. 73: p. 1651, § 23. L. 75: IP(1) amended, p. 925, § 19, effective July 1. L. 77: (1.5) added, p. 822, § 1, effective July 1. L. 81: (1)(a) amended, p. 899, § 1, effective July 1. L. 87: (1)(f) amended, p. 1577, § 20, effective July 10. L. 94: IP(1) and (1)(g) amended, p. 1040, § 19, effective July 1, 1995. L. 2002: Entire section R&RE, p. 31, § 1, effective July 1. L. 2013: Entire section amended, (SB 13-077), ch. 190, p. 766, § 1, effective August 7.

ANNOTATION

I. General Consideration.

I. GENERAL CONSIDERATION.

Law reviews. For article, "The Right to Practice Law as Dependent on Fear of Hell", see 19 Dicta 206 (1942). For note, "Some Problems Relating to Testamentary Witnesses", see 23 Rocky Mt. L. Rev. 458 (1951). For comment on Risbry v. Swan, appearing below, see 24 Rocky Mt. L. Rev. 372 (1952). For article, "Evidence in Estate Proceedings", see 24 Rocky Mt. L. Rev. 437 (1952). For article, "Reciprocal Wills and Contracts to Will", see 29 Rocky Mt. L. Rev. 453 (1957). For article, "One Year Review of Contracts", see 35 Dicta 18 (1958). For note, "The Colorado Dead Man Statute", see 43 Den. L.J. 349 (1966). For article, "Termination of a Personal Representative", see 19 Colo. Law. 213 (1990). For article, "Prenuptial Agreements and the Dead Man's Statute", see 23 Colo. Law. 357 (1994). For article, "Colorado Dead Man's Statute: Time for Repeal or Reform?", see 29 Colo. Law. 45 (Jan. 2000). For article, "The New Colorado Dead Man's Statute", see 31 Colo. Law. 119 (July 2002). For article, "Lights, Camera, Action—Video Will Executions", see 42 Colo. Law. 45 (Jan. 2013). For article, "The 2013 Revised Colorado Dead Man's Statute", see 42 Colo. Law. 45 (Sept. 2013).

Annotator's note. The following annotations include cases decided under prior versions of this section.

Constitutionality. The constitutionality of dead man's statute has been upheld as not violative of constitutionally protected rights to due process, equal protection, and is not a legislative usurpation of judicial function of determining a witness's competency and credibility. Music City, Inc. v. Estate of Duncan, 185 Colo. 245, 523 P.2d 983 (1974).

The dead man's statute involves neither a suspect classification nor an infringement of a fundamental right. Lopata v. Metzel, 641 P.2d 952 (Colo. 1982).

This section is commonly known as the dead man's statute. Estate of Thomas v. Davis, 144 Colo. 358, 356 P.2d 963 (1960); Estate of Freeman v. Young, 172 Colo. 322, 473 P.2d 704 (1970).

It contains several exceptions to § 13-90-101. Palmer v. Hanna, 6 Colo. 55 (1881).

And is a limitation on that section. This section is a limitation on § 13-90-101, which permits, with certain exceptions, all persons who have an interest in the event of an action to be witnesses. Patterson v. Pitoniak, 173 Colo. 454, 480 P.2d 579 (1971); First Nat'l Bank of Colo. Springs v. Morris, 721 P.2d 1192 (Colo. App. 1985).

This section is clear, specific, and incapable of misconstruction. Fetta v. Vandevier, 3 Colo. App. 419, 34 P. 168 (1893); Brantner v. Papish, 109 Colo. 437, 126 P.2d 1032 (1942).

And free from all possible doubt as to its purpose. Its terms are plain, clear, and direct. It evidently means just what it says and says just what it means, and needs no construction. Cree v. Becker, 49 Colo. 268, 112 P. 783 (1910).

Purpose is to protect estates from claims of strangers. The purpose of this section in preventing a party to an action, suit, or proceeding, or person directly interested in the result thereof, from testifying in his own behalf, is to protect the undisputed heirs of an intestate from claims against the estate, or for any part thereof, by persons who do not claim as undisputed heirs or distributees, but as strangers to the estate, or to that part of it, which they claim. Cliff v. Cliff, 23 Colo. App. 183, 128 P. 860 (1912); Nat'l State Bank v. Brayman, 30 Colo. App. 554, 497 P.2d 710 (1972), rev'd on other grounds, 180 Colo. 304, 505 P.2d 11 (1973).

The policy underlying this section is to guard against perjury by prohibiting living interested witnesses from testifying when the deceased cannot refute the testimony and thus to protect the decedent's estate against unjust claims. DeLeon v. Tompkins, 40 Colo. App. 241, 576 P.2d 563 (1977), rev'd on other grounds, 197 Colo. 569, 595 P.2d 242 (1979); Coon v. Berger, 41 Colo. App. 358, 588 P.2d 386 (1978), aff'd, 199 Colo. 133, 606 P.2d 68 (1980); First Nat. Bank of Colo. Springs v. Morris, 721 P.2d 1192 (Colo. App. 1985); In re Estate of Crenshaw, 100 P.3d 568 (Colo. App. 2004) (decided prior to 2002 repeal and reenactment).

The purpose of this section is to protect decedents' estates and mental incompetents from false claims as these parties are in need of protection because they are at a disadvantage in a lawsuit due to their inability to answer the allegations of their opponents. Lopata v. Metzel, 641 P.2d 952 (Colo. 1982).

By excluding their testimony when the adverse party is an executor or administrator. The true object and purpose of this section, as ascertained from the language used and from the decision of the courts upon similar statutes, seem to be to absolutely exclude the testimony of a party to an action, when the adverse party is an executor or administrator, except as such party may be made competent to testify by the action of such executor or administrator. Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

Purpose of dead man's statute is to attempt to maintain equality between parties at trial through limitations upon admissibility of evidence, thereby promoting justice. Berger v. Coon, 199 Colo. 133, 606 P.2d 68 (1980).

This section's purpose is to promote equal justice between the parties at trial by excluding evidence which might otherwise be relevant, in other words, it is intended to place parties on an equal footing. Wise v. Hillman, 625 P.2d 364 (Colo. 1981).

Case law has held the purpose of the statute to be to protect decedent's estates and mental incompetents from false claims. In re Estate of Hill, 713 P.2d 928 (Colo. App. 1985).

It performs traditional function of guarding against perjury by protecting the mentally incompetent and the estates of decedents from unjust claims. Wise v. Hillman, 625 P.2d 364 (Colo. 1981).

Section cannot apply where proceeding cannot increase or decrease estate size. Where the result of a proceeding can neither increase nor diminish the estate, the dead man's statute cannot be said to apply. Nat'l State Bank v. Brayman, 30 Colo. App. 554, 497 P.2d 710 (1972), rev'd on other grounds, 180 Colo. 304, 505 P.2d 11 (1973).

Section does apply when a witness stands to share in the estate to the detriment of other heirs. When the purpose of a witness as the purported common law spouse of the decedent is to gain a share of the estate, witness should not be allowed to testify regarding the marriage with decedent, the validity of which would diminish the interest of some heirs. In re Estate of Crenshaw, 100 P.3d 568 (Colo. App. 2004) (decided prior to 2002 repeal and reenactment).

Person may not claim section in part and waive in part. He for whose protection the statute was enacted may not juggle with it. He may not claim it in part and waive it in part as suits his convenience. Otherwise this act, passed for the purpose of preventing fraud, might become the instrument of fraud. Hillman v. Bray Lines, 41 Colo. App. 493, 591 P.2d 1332 (1978), aff'd sub nom. Wise v. Hillman, 625 P.2d 364 (Colo. 1981).

Dead man's statute does not preclude a claimant's testimony as to transactions occurring outside the presence of the mental incompetent concerning which the mental incompetent could not testify of her own knowledge had she been competent. In re Estate of Hill, 713 P.2d 928 (Colo. App. 1985).

This section should be liberally construed. The spirit of this section is to exclude the testimony of a party when the opposite party is deceased, and cannot give his testimony upon the matters in controversy, and the statute should receive a liberal construction, and the spirit, rather than the technical letter, should govern in its application. Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

In order to place the parties on an equality. The object and spirit of the provision of this section, which excludes a living party from testifying in his own behalf when the adverse party is an executor or administrator, is to place the parties on an equality. This object can be attained by giving to the language used in this section such meaning as will make it harmonize with other statutes and with the usual and well understood practice of courts in the introduction of evidence. Whitsett v. Kershow, 4 Colo. 419 (1878); Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

This section must be judiciously applied. Beneficent as the statutory rule is, which precludes parties and persons interested in an action from testifying therein when the opposite party sues or defends as an administrator, the rule must be judiciously applied, or it may work great wrong and injury. Prewitt v. Lambert, 19 Colo. 7, 34 P. 684 (1893); Brantner v. Papish, 109 Colo. 437, 126 P.2d 1032 (1942).

Section should not be so restricted as to fail in its intention. Although this section may, in some instances, work a hardship and prevent parties from establishing honest defenses, it is a salutary one and necessary for the protection of estates, widows, and minor heirs, who, without some rule of evidence of this kind, would find themselves at the mercy of any unprincipled debtor, and while the rule need not be unnecessarily extended, it should not be so restricted as to fail in its intention. Williams v. Carr, 4 Colo. App. 363, 36 P. 644 (1894).

This section applies in equity and at law. The statutory prohibition against a party to an action or directly interested therein testifying of his own motion or in his own behalf, when the adverse party sues or defends as the executor or administrator of a deceased person, is the same in equity as at law. Williams v. Carr, 4 Colo. App. 368, 36 P. 646 (1894).

This section does not properly apply unless it unquestionably appears that the party is suing or defending as executor or administrator. Prewitt v. Lambert, 19 Colo. 7, 34 P. 684 (1893).

Which fact must be established by positive averment and proof. When a person sued individually for the conversion of property undertakes to defend as administrator, he must establish by positive averment and proof his status as administrator and that he is possessed of, or entitled to, such property, and chargeable therewith in such capacity, by some appropriate preliminary trial, before the opposite party, or other interested parties, can properly be excluded as witnesses upon the merits of the case. Prewitt v. Lambert, 19 Colo. 7, 34 P. 684 (1893).

Disqualifying interest determined at time of testimony. The disqualifying interest within the meaning of the dead man's statute is determined as of the time the testimony sought to be excluded is offered. Gaddis v. McDonald, 633 P.2d 1102 (Colo. App. 1981); David v. Powder Mt. Ranch, 656 P.2d 716 (Colo. App. 1982).

Interest must be shown. The interest of a witness must be shown before the bar of the statute may be invoked. David v. Powder Mt. Ranch, 656 P.2d 716 (Colo. App. 1982).

This section does not apply to an executrix defending in her individual right. One who, being sued both in her individual capacity and as executrix, defends solely in her individual right, cannot exclude the testimony of plaintiff under this section. Gabrin v. Brister, 65 Colo. 407, 177 P. 134 (1918); Lamborn v. Kirkpatrick, 97 Colo. 421, 50 P.2d 542 (1935).

This section does not permit an executor to join an uninterested person as a party defendant and thereby deny him the right to testify. Klein v. Munz, 87 Colo. 223, 286 P. 112 (1930).

The combined effect of this and the preceding section is to enlarge common-law competency so as to embrace all persons, except those within this section and as to those to leave competency as at common law. "Competency as witnesses of persons not parties to the record is presumed until the contrary appears, and the onus is upon the objector to show the incompetency." Jones v. Henshall, 3 Colo. App. 448, 34 P. 254 (1893); King Shoe Co. v. Chittenden, 16 Colo. App. 441, 66 P. 173 (1901).

In some cases an administrator is not an adverse party. In a suit to impress a trust upon a decedent's estate as a result of a contract to execute reciprocal wills, the administrator being under no obligation to defend the issues raised is not, under a proper interpretation of this section an adverse party, and is without right to interpose an objection to evidence offered by the plaintiff as a witness in her own behalf. Risbry v. Swan, 124 Colo. 567, 239 P.2d 600 (1951).

State not "adverse party". In a suit in which it is sought to impress a trust upon a decedent's estate, the state of Colorado has presently no enforceable claim against the estate, and strictly construed, may well be said at the present time not to fall even within the classification of "adverse party" since it becomes entitled to no right of enforcement until the court in whose hands the estate is being administered shall enter a proper decree directing the personal representative to pay the money over to the state treasurer pursuant to the escheat statute. Risbry v. Swan, 124 Colo. 567, 239 P.2d 600 (1951).

Objection may be waived. The exception engrafted upon the general competency of all parties, that where one is dead and is represented in the suit, then the living party shall not be permitted to testify, is only a regulation to secure mutuality in the action itself. The admission of such testimony affects no one but the parties, and none but the parties are interested in the exercise of the power given to exclude this testimony. Faden v. Midcap's Estate, 112 Colo. 573, 152 P.2d 682 (1944); Risbry v. Swan, 124 Colo. 567, 239 P.2d 600 (1951).

Even though minors are interested in estate. Representative may waive objection to incompetency although minors may be interested in the estate. Faden v. Midcap's Estate, 112 Colo. 573, 152 P.2d 682 (1944).

Admitting evidence of a conversation with a party since deceased is not reversible error where it did not affect the issue on trial. Tourtelotte v. Brown, 18 Colo. App. 335, 71 P. 638 (1903).

Grand jury testimony was not released merely to circumvent the evidencing problems encountered by operation of the Dead Man's Statute. In re Lynde, 922 F.2d 1448 (10th Cir. 1991).

Applied in In re Estate of Abbott, 39 Colo. App. 536, 571 P.2d 311 (1977); Taylor v. Barnes, 41 Colo. App. 246, 586 P.2d 238 (1978); Tompkins v. DeLeon, 197 Colo. 569, 595 P.2d 242 (1979); Murphy v. Glenn, 964 P.2d 581 (Colo. App. 1998); Glover v. Innis, 252 P.3d 1204 (Colo. App. 2011).

II. DISQUALIFIED WITNESSES.

A. Certain Plaintiffs and Defendants.

B. Interested Parties.

A. Certain Plaintiffs and Defendants.

The competency or incompetency of a plaintiff's proffered testimony in his own behalf is determined by this section. Miller v. Hepner, 136 Colo. 48, 314 P.2d 604 (1957).

The protection of this section extends only to adverse parties within the designated class, and not to their co-parties not within such class. Nesbitt v. Swallow, 63 Colo. 194, 164 P. 1163 (1917); Gabrin v. Brister, 65 Colo. 407, 177 P. 134 (1918); Watson v. Woodley, 71 Colo. 391, 207 P. 335 (1922); Steward v. Burt, 73 Colo. 468, 216 P. 258 (1923); Sauer v. First Nat'l Bank, 75 Colo. 119, 224 P. 227 (1924); Haffner v. Van Blarcom, 84 Colo. 565, 272 P. 621 (1928).

An "adverse party" is any person whose personal or property or other rights may be adversely affected by the operation of the judgment. In re Stepp's Estate, 101 Colo. 506, 75 P.2d 146 (1937).

A party to an action is incompetent to testify of his own motion, or in his own behalf, when the adverse party sues as executor or administrator. Williams v. Carr, 4 Colo. App. 363, 36 P. 644 (1894); Rogers v. McMillen, 6 Colo. App. 14, 39 P. 891 (1895); Cree v. Becker, 49 Colo. 268, 112 P. 783 (1910).

Or when any person appears and sues or defends as heir. Whitsett v. Kershow, 4 Colo. 419 (1878); Gilham v. French, 6 Colo. 196 (1882); Fetta v. Vandevier, 3 Colo. App. 419, 34 P. 168 (1893); Lancaster v. Coale, 27 Colo. App. 495, 150 P. 821 (1915).

Unless he comes within some of the exceptions expressed in this section. Fetta v. Vandevier, 3 Colo. App. 419, 34 P. 168 (1893); Carpenter v. Ware, 4 Colo. App. 458, 36 P. 298 (1894).

This does not affect the rights of executors to become parties. The fact that, by making the executors of a vendor parties to an action, defendants were rendered incompetent to testify as witnesses in their own behalf, does not affect the right of the executors to become parties. Butler v. Rockwell, 14 Colo. 125, 23 P. 462 (1890).

Witness may be incompetent against executor, but competent against other defendants. In an action where one is defending as an heir or legal representative, a witness who is incompetent against the heir or representative, under the statute, may be competent to testify against other defendants in the action, who are not representatives or heirs. Nesbitt v. Swallow, 63 Colo. 194, 164 P. 1163 (1917); Gabrin v. Brister, 65 Colo. 407, 177 P. 134 (1918);Watson v. Woodley, 71 Colo. 391, 207 P. 335 (1922).

The dead man's statute is not applicable where a party is not suing or defending as an heir. Askins v. Easterling, 141 Colo. 83, 347 P.2d 126 (1959).

Such as a grantor and grantee. The dead man's statute has no application where parties are suing or defending as grantor and grantee and not as heirs. Askins v. Easterling, 141 Colo. 83, 347 P.2d 126 (1959); Linker v. Linker, 28 Colo. App. 136, 470 P.2d 882 (1970).

Or as a corporate stockholder. This section does not apply where the objecting party is suing, not as an heir but as a stockholder in a corporation; and whether she inherited or purchased the stock is unimportant. Allen v. Fleming, 97 Colo. 204, 48 P.2d 810 (1935).

This section is not altered, when a general objection is made before the witness is sworn, whether the testimony elicited was upon the direct or cross-examination. Whitsett v. Kershow, 4 Colo. 419 (1878).

If a party is incompetent the character of his testimony and the subject matter about which he testifies are totally unimportant. If the evidence which he gives is relevant to any issue made in the case, it is error to permit him to give it at his own instance, and if the objection be properly interposed in apt time, it must be sustained. Jones v. Henshall, 3 Colo. App. 448, 34 P. 254 (1893); Brown v. First Nat'l Bank, 49 Colo. 393, 113 P. 483 (1911).

Examination of one witness who is incompetent under section operates as waiver of incompetency as to other adverse witnesses where the testimony of the adverse witness is offered after the examination of the first witness and relates to matters testified to by the first witness. Wise v. Hillman, 625 P.2d 364 (Colo. 1981).

This section prohibits the surviving party's testifying in a suit by the executor of the deceased party's estate. Oswald v. Dawn, 143 Colo. 487, 354 P.2d 505 (1960).

Also plaintiff in suit for services to a decedent. In an action for the value of care and services rendered a deceased defendant, it is error under this section, to permit a plaintiff to testify in his own behalf over the objection of defendant, defending the action as administratrix. Temple v. Magruder, 36 Colo. 390, 85 P. 832 (1906); Young v. Burke, 139 Colo. 305, 338 P.2d 284 (1959).

And a claimant, as injured passenger in automobile collision, who brought suit against operator of another motor vehicle was precluded by this section from testifying as to anything that occurred prior to date of decedent's death. Gushurst v. Benham, 160 Colo. 428, 417 P.2d 777 (1966); Nat'l State Bank v. Brayman, 30 Colo. App. 554, 497 P.2d 710 (1972), rev'd on other grounds, 180 Colo. 304, 505 P.2d 11 (1973).

Also, a plaintiff in a new trial on issue of damages. Where the supreme court had ruled in previous opinion that unless the plaintiff consented to reduction of the award for exemplary damages within 10 days after the issuance of the remittitur, the judgment would be reversed as to issue of damages, and a new trial ordered on that issue alone, and nothing transpired for approximately three and one-half years or until shortly after the defendant's death when the plaintiff applied to set damages issue for trial, under the circumstances the trial court did not err in ruling that the plaintiff was precluded from testifying under the provisions of this section, the "dead man's statute". Bennett v. Kresse, 174 Colo. 200, 483 P.2d 384 (1971).

In addition, no self-serving statement by disqualified claimant is competent evidence. In a proceeding upon the allowance of a claim against the estate of a decedent, a deposition taken by the administrator was introduced and read by claimant. Attached to the deposition as an exhibit was a letter written by the claimant to the deponent after the death of the decedent, in which was set forth in detail the amount and character of the services rendered upon which the claim against the estate was based, and such letter was allowed in evidence over the objection of the administrator. Held, that the claimant being disqualified as a witness under this section no self-serving statement made by him in the form of a letter could be competent evidence. Butler v. Phillips, 38 Colo. 378, 88 P. 480 (1906).

The administratrix of the estate of a deceased person is incompetent to testify, in a hearing to set aside the allowance of a claim against the estate, regarding matters which occurred prior to the death of claimant. Lego v. Olson, 110 Colo. 508, 136 P.2d 277 (1943).

Beneficiaries under a will are incompetent to testify in contested proceedings to have admitted to probate over the objection of heirs of the testator. In re Shapter's Estate, 35 Colo. 578, 85 P. 688 (1906); In re Eder's Estate, 94 Colo. 173, 29 P.2d 631 (1934); In re Livingston's Estate, 102 Colo. 148, 77 P.2d 649 (1938); Cole v. Christopher, 121 Colo. 461, 217 P.2d 620 (1950).

Widow claiming interest in estate is incompetent. In an action by a widow against the administrator of her deceased husband, the plaintiff proposed to testify, of her own motion, that certain property sold in the lifetime of her husband belonged to her; that she consented to the sale, and permitted the husband to take the money, with the understanding that he was to reinvest it in another homestead, which was to belong to her, but which was never done. Under this section such testimony is specifically prohibited. Palmer v. Hanna, 6 Colo. 55 (1881); Carpenter v. Ware, 4 Colo. App. 458, 36 P. 298 (1894); Stratton v. Rice, 66 Colo. 407, 181 P. 529 (1919); Walker v. Walker, 131 Colo. 328, 281 P.2d 1010 (1955).

As is child seeking statutory allowance from father's estate. A minor child, unless within some of the exceptions enumerated in this section is incompetent to testify in proceedings wherein he is seeking a statutory allowance from the estate of his deceased father. Lyons v. Egan, 110 Colo. 227, 132 P.2d 794 (1942).

The executor of a will is a party to a will contest, and, therefore, not a competent witness, under this section. In re Shapter's Estate, 35 Colo. 578, 85 P. 688 (1906).

Plaintiff in action on promissory note is incompetent. In an action against the administrator of an estate on a promissory note of the deceased, the plaintiff cannot testify on his own motion or in his own behalf. Reiter v. Pollard, 75 Colo. 203, 225 P. 222 (1924).

As is surviving partner proving partnership. In an action against two persons alleged to be co-partners for the collection of a claim against the firm, wherein service of summons is made on one only, who answers denying the partnership and his own liability as well, but dies before trial of the issues, and his administratrix is substituted as defendant, the alleged surviving partner is not a competent witness for the plaintiffs under the statute to prove the partnership. No acknowledgment by a surviving partner, made after the death of his co-partner, will revive a debt against the estate of the deceased partner. Cooper v. Wood, 1 Colo. App. 101, 27 P. 884 (1891); Hottel v. Mason, 16 Colo. 43, 26 P. 335 (1891).

A disqualified person is not to be censured for failing to offer to testify. Irvine v. Minshull, 60 Colo. 112, 152 P. 1150 (1915).

B. Interested Parties.

This section has no application to witnesses who have no interest in the result of the litigation. Kitts v. Hill, 89 Colo. 186, 300 P. 610 (1931); Lamborn v. Kirkpatrick, 97 Colo. 421, 50 P.2d 542 (1935); In re Stepp's Estate, 101 Colo. 506, 75 P.2d 146 (1937).

Nor to a witness whose testimony cannot be prejudicial. It is unnecessary to determine whether or not a witness is disqualified by virtue of the provisions of this section where his testimony is of a character that cannot possibly be prejudicial to the interests of the executrix or the estate which she represents. Cone v. Eldridge, 51 Colo. 564, 119 P. 616 (1911).

Such witnesses are competent to testify under the preceding section. Further, being competent under the common law to testify, and common-law competency not being abridged by our statute, his deposition should have been received. The deposition went to material matters. Prejudicial error was committed in its rejection. King Shoe Co. v. Chittenden, 16 Colo. App. 441, 66 P. 173 (1901).

The interest of a defendant or witness must be shown before the bar of the statute may be invoked. Klein v. Munz, 87 Colo. 223, 286 P. 112 (1930).

The test of the interest of a witness is whether he will gain or lose by the direct legal operation of the judgment. Popejoy v. Bahr, 67 Colo. 385, 176 P. 947 (1919); Norris v. Bradshaw, 92 Colo. 34, 18 P.2d 467 (1932); In re Eder's Estate, 94 Colo. 173, 29 P.2d 631 (1934); Denver Nat'l Bank v. McLagan, 133 Colo. 487, 298 P.2d 386 (1956); Sussman v. Barash, 157 Colo. 124, 401 P.2d 608 (1965); David v. Powder Mt. Ranch, 656 P.2d 716 (Colo. App. 1982).

Test of interest is made at time testimony is offered. The decisive test is when, in point of time, the interest is to be determined. The competency of a witness, insofar as his interest is concerned, generally depends on the facts as they exist at the time when his testimony is offered, rather than at the time of the filing of the petition. Miller v. Hepner, 136 Colo. 48, 314 P.2d 604 (1957); Zietz v. Estate of Turner, 168 Colo. 499, 452 P.2d 1 (1969); In re Estate of Granberry, 30 Colo. App. 590, 498 P.2d 960 (1972).

The interest of a witness in the result of litigation is made to appear by a consideration of the rights created or extinguished by its issue. Cordingly v. Kennedy, 239 F. 645 (8th Cir. 1917).

Consent will not remove the disability of interest. The disability, under this peculiar statute, so far as interest is concerned, is not one which is removable by the consent of the party offering it as in the case of interest at the common law. Williams v. Carr, 4 Colo. App. 368, 36 P. 646 (1894).

Testimony will not be barred when interest is merely an expectancy. This section does not bar testimony of claimant regarding a conversation that claimant had with deceased to the effect that deceased was holding land in trust for claimant's mother when at the time the action was begun the claimant's mother was living and claimant's interest in the property was only an expectancy. In re Estate of Granberry, 30 Colo. App. 590, 498 P.2d 960 (1972).

Wife of defendant is not directly interested. The fact that a witness is the wife of the defendant would not, of itself, make her directly interested in the event of the suit, within the meaning of the statute, so as to exclude her testimony. Butler v. Phillips, 38 Colo. 378, 88 P. 480 (1906); White v. Christopherson, 46 Colo. 46, 102 P. 747 (1909); Norris v. Bradshaw, 92 Colo. 34, 18 P.2d 467 (1932).

Husband need not have direct interest. Where husband of claimant had no "direct interest" in the outcome of the litigation, his testimony did not offend this section. Gushurst v. Benham, 160 Colo. 428, 417 P.2d 777 (1966).

Mere fact that witness is mother of party does not render her incompetent. There was no testimony to suggest that the mother was directly interested in the outcome of the lawsuit, brought by her son, other than the normal interest a parent has for the welfare of a child. At the time of the trial, she was 70 years of age, and had never received support from the plaintiff, and was competent to testify in support of the agreement benefitting her son. Zietz v. Estate of Turner, 168 Colo. 449, 452 P.2d 1 (1969).

Agent is not necessarily interested. So far as the evidence discloses, deponent had no direct interest in the event of the action. King Shoe Co. v. Chittenden, 16 Colo. App. 441, 66 P. 173 (1901).

Under this section a stockholder in a corporation is not a competent witness to establish a claim of such corporation against a decedent's estate. Brown v. First Nat'l Bank, 49 Colo. 393, 113 P. 483 (1911); Gilmour v. Hawley Merchandise Co., 21 Colo. App. 307, 121 P. 765 (1912).

A stockholder of a claimant corporation is an interested party within the meaning of the dead man's statute, and therefore incompetent to testify. Music City, Inc. v. Estate of Duncan, 185 Colo. 245, 523 P.2d 983 (1974).

The mere fact that witnesses to a will were employees of a corporation in which the testatrix had an interest, and as such employees might be eligible to receive a bonus from the company if and when any such should be paid, did not render them incompetent to testify as to the execution of the will, their interest, if any, being too remote and too indirect to disqualify them. Estate of Ainsworth, 102 Colo. 392, 79 P.2d 1045 (1938).

Attorneys are competent to testify. The statutory provision that no person directly interested in the event of a civil action may testify therein when the adverse party sues or defends as an executor, does not apply to the attorney of a party because of the ordinary and usual fee he would receive for acting as such attorney. Estate of Leibold, 102 Colo. 408, 79 P.2d 1049 (1938).

Decedent's attorney was not incompetent to testify in proceeding to establish lost will because, as attorney for the estate, he had a financial interest in the estate. In re Estate of Enz, 33 Colo. App. 24, 515 P.2d 1133 (1973).

Attorney for proponents of will may testify. An attorney for proponents of a will is not disqualified as a witness to testify in court relative thereto merely because of fees he may be entitled to receive because of his employment as counsel. In re Eder's Estate, 94 Colo. 173, 29 P.2d 631 (1934); Denver Nat'l Bank v. McLagan, 133 Colo. 487, 298 P.2d 386 (1956).

As to father of defendant in ejectment action. Defendant in ejectment claimed under a conveyance from the wife of plaintiff, the validity of which was contested. The father of the defendant claiming other lands, under a different conveyance contested upon the same grounds asserted in the present action, was held competent. Allen v. Shires, 47 Colo. 433, 107 P. 1070 (1910).

And wife of a legatee. The wife of a legatee is a competent attesting witness under this section when examined for and with his consent. White v. Bower, 56 Colo. 575, 136 P. 1053 (1913).

Also, brothers and sisters of a devisee are competent witnesses to sustain a will. Butler v. Phillips, 38 Colo. 378, 88 P. 480 (1906); White v. Christopherson, 46 Colo. 46, 102 P. 747 (1909); In re Hatfield's Will, 21 Colo. App. 443, 122 P. 63 (1912); Burnham v. Grant, 24 Colo. App. 131, 134 P. 254 (1913).

Generally, one entering into a contract for the benefit of a third person may testify as to it in an action by the beneficiary, against the estate of the other party. Sussman v. Barash, 157 Colo. 124, 401 P.2d 608 (1965).

As may a witness concerned in another suit. A witness is not excluded under this section, where he has no interest in the suit in which his testimony is offered, even though he is concerned in a different suit, involving the validity of a contract, upon which depends the suit in which he is offered. Love v. Cotten, 65 Colo. 593, 179 P. 806 (1919).

So may part owner of chattel in replevin proceedings. One not a party to an action of replevin by an administrator is not disqualified, under this section, as a witness for the defendant, by reason of the fact that he is the owner of some of the chattel. Popejoy v. Bahr, 67 Colo. 385, 176 P. 947 (1919).

Interested person incompetent to lay foundation for admission of book accounts. An interested person, within the meaning of this section, is not a competent witness for laying a foundation for admission of book accounts into evidence under § 13-90-103. Music City, Inc. v. Estate of Duncan, 185 Colo. 245, 523 P.2d 983 (1974).

Witness relieved of liability by judgment against executor. One who is not a party to an action against an executor is not disqualified as a witness for the plaintiff by the mere fact the he may be, himself, relieved of liability by a judgment against the executor. He is not "directly interested", within the meaning of the statute. Selkregg v. Thomas, 27 Colo. App. 259, 149 P. 273 (1915).

III. EXCEPTIONS.

A. In General.

B. Witnesses Called by Adverse Party.

C. Facts Occurring After Death of Decedent.

D. Conversations or Transactions with Decedent.

E. Deposition of Deceased Entered in Evidence.

F. Conversations in Presence of Certain People.

G. Previous Testimony in Probate Proceedings.

A. In General.

Competency attends where voluntary testimony is given without objection. A claimant, if called by the representative of the estate for that purpose, is competent to testify of and concerning his claim, and competency also attends where, proceeding without objection, claimant voluntarily testifies in that behalf. The latter consideration is emphasized when the representative of the estate has conducted an exhaustive cross-examination of claimant on the merits of his claim. Faden v. Midcap's Estate, 112 Colo. 573, 152 P.2d 682 (1944).

The provisions of this section relating to the manner in which incompetency can be removed are not uncertain or ambiguous as to what must be done to render such incompetent witness competent, to the extent therein provided. Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

There is no reason for judicial interpretation of the legislative intent. The general assembly having said that the living party may testify, under certain circumstances, when the adverse party is an executor or administrator, it must be held to have expressed its full intention in that regard, and there is no call for a judicial interpretation of the legislative intention when such intention is clearly expressed. Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

No judicial exceptions may be created. The circumstance that the action is upon a bond in which one still living but not joined was surety, affords no ground to make an exception to the rule prescribed by this section. Cree v. Becker, 49 Colo. 268, 112 P. 783 (1910).

It is only under one of the exceptions that testimony may be admissible where witness is a party to the action or directly interested. This section prohibits a party to the action, or any person directly interested in the event thereof, from giving testimony of his own motion or in his own behalf, when the adverse party sues or defends as the administrator of a deceased person, unless the testimony is admissible under one of the exceptions enumerated in this section. Brown v. First Nat'l Bank, 49 Colo. 393, 113 P. 483 (1911).

Whether witness is within exceptions should appear before he is admitted to testify. Under this section when a party is offered as a witness, and before he is admitted to testify, it should be made to appear from his status in the case whether he is brought within any of the enumerated exceptions to the disqualifying section of the statute. Whitsett v. Kershow, 4 Colo. 419 (1878).

Proponent of will may testify to contradict testimony of drawing attorney. In a will contest, testimony of the proponent concerning the preparation of the will by an attorney, such testimony being in direct conflict with that of the attorney respecting the circumstances surrounding the drawing and execution of the will, was not barred by the "dead man's" statute. Ofstad v. Sarconi, 131 Colo. 541, 285 P.2d 828 (1955).

Dead man's statute was not a bar to testimony concerning conversations party had with attorney when record clearly indicates conversations occurred outside presence of decedent. Difede v. Mtn. States Tel. & Tel., 763 P. 2d 298 (Colo. App. 1988), rev'd on other grounds, 780 P.2d 533 (Colo. 1989).

Use by defendant of deposition statements made by plaintiff regarding conversations she had with decedent constitutes waiver of right to bar testimony regarding same conversations. Crandell v. Resley, 804 P.2d 272 (Colo. App. 1990).

B. Witnesses Called by Adverse Party.

Disqualified witness called by adverse party is thereby rendered competent for all purposes. When a disqualified witness is called by the adverse party and examined by him as a witness upon certain matters pertinent to some of the issues in the case, such witness is thereby rendered competent for all purposes. Warren v. Adams, 19 Colo. 515, 36 P. 604 (1894); Jerome v. Bohn, 21 Colo. 322, 40 P. 570 (1895); Allen v. Shires, 47 Colo. 433, 107 P. 1070 (1910); Zackheim v. Zackheim, 75 Colo. 161, 225 P. 268 (1924); Stender v. Cunningham, 123 Colo. 5, 225 P.2d 52 (1950); Estate of Thomas v. Davis, 144 Colo. 358, 356 P.2d 963 (1960).

Objection to competency is not waived where witness is not called by adverse party but is cross-examined to show interest. Where a witness was not called by the adverse party under § 13-90-116, but was cross-examined only to such extent as would fully disclose that he was a party directly interested in the result of the controversy, which was made clearly to appear, this does not waive objection to competency. Cordingly v. Kennedy, 239 F. 645 (8th Cir. 1917).

Waiver of defense where incompetent testifies. The examination of one witness who is incompetent under this section operates as a waiver of incompetency as to other adverse witnesses, at least where the testimony of the adverse witness relates to subjects covered by the first witness. Hillman v. Bray Lines, 41 Colo. App. 493, 591 P.2d 1332 (1978), aff'd sub nom. Wise v. Hillman, 625 P.2d 364 (Colo. 1981).

C. Facts Occurring After Death of Decedent.

It is not error to receive testimony of plaintiffs to facts occurring subsequent to the decease of the defendants' ancestor. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

Or testimony as to facts occurring after death of testator. In a proceeding contesting the admission of a will to probate, witnesses are competent to testify to facts occurring after the death of the testator regardless of their interest in the outcome of the proceeding. In re Eder's Estate, 94 Colo. 173, 29 P.2d 631 (1934).

Such as conversation between witness and administrator. In an action against an administrator, a conversation between the administrator and a party to the suit who has since died, which did not relate to matters transpiring prior to the death of the administrator's decedent, is not prohibited from admission in evidence by this section. Tourtelotte v. Brown, 18 Colo. App. 335, 71 P. 638 (1903).

Heirs cannot testify as to statements of testator made before his decease. Testimony of a daughter and her husband concerning statements of the father made before his decease as to the disposition of his property held, under the disclosed facts, to be inadmissible; further held, that the witnesses were incompetent to testify as to such statements, and the admission of the evidence was reversible error. Norris v. Bradshaw, 92 Colo. 34, 18 P.2d 467 (1932).

D. Conversations or Transactions with Decedent.

The exception as to conversations and transactions with the deceased does not extend to deposit slips, and checks, in the handwriting of the deceased, dated at times when, according to the assertions of the claimant, he was in another state. Stratton v. Rice, 66 Colo. 407, 181 P. 529 (1919).

E. Deposition of Deceased Entered in Evidence.

Use of decedent's prior recorded testimony. Either party may offer decedent's prior recorded testimony into evidence, and thereafter claimant, by virtue of such offer, may become a competent witness on his own behalf. Coon v. Berger, 41 Colo. App. 358, 588 P.2d 386 (1978), aff'd, 199 Colo. 133, 606 P.2d 68 (1980).

Deposition of deceased may be read by either party. When one party sues or defends as an executor or administrator of a deceased person, by excluding the testimony of the adverse party the parties are placed on an equality; but, if the deposition of the deceased party has been taken, "it may be read in any stage of the same action or proceeding by either party and shall then be deemed evidence of the party reading it". Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

If read by the representative of deceased, the living party may testify in his own behalf. If the testimony of a deceased party, given on a former trial, is offered in evidence by the administrator of such deceased party, the reason for the exclusion of the testimony of the living party is taken away; and to place the parties on an equality, as is the intention of the statute, the living party must be allowed to testify in his own behalf as to the matters' testified to by the deceased party on the former trial. Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

Otherwise he is incompetent to testify. By the plain provisions of this subdivision, appellee could not be made a witness in his own behalf, unless the deposition of the deceased defendant be read in evidence. He was rendered incompetent to testify in the case by the death of the adverse party, and must remain incompetent until his incompetency was removed in the manner provided by the statute. Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

If offered by the living party it is regarded as the testimony of his own witness. The testimony of the deceased, given at a former trial, may be offered in evidence by the living party, and then it is to be regarded as the testimony of his own witness, and subject to all the rules applicable to the testimony of any other witness in his behalf; but the introduction of such testimony by the living party will not make such party a competent witness in his own behalf. Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

The testimony of the living party is to be in rebuttal of the deposition. The fair implication arising from the restriction of this subdivision is that the testimony of the living party is to be in rebuttal of the deposition of the deceased party; that it is optional with the executor or administrator to introduce the deposition in evidence, or to withhold it from introduction. Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

The mere existence of a deposition is not sufficient to entitle living party to testify. To hold that the requirement of this subdivision is complied with by showing the existence of a deposition of a deceased party that can be read in evidence would be judicial legislation. Levy v. Dwight, 12 Colo. 101, 20 P. 12 (1888).

Rebuttable by testimony limited to matters relevant to decedent's statement. In a retrial of a malpractice action against an attorney who has since died, the clients are not prevented from testifying if the decedent's prior court testimony is first admitted into evidence and their testimony is limited to relevant and competent matters encompassed within the decedent's prior testimony. Berger v. Coon, 199 Colo. 133, 606 P.2d 68 (1980).

This provision is limited to depositions of deceased persons and does not expressly include lunatics or distracted persons. Fleming v. Miller, 84 Colo. 27, 267 P. 1064 (1928).

F. Conversations in Presence of Certain People.

Testimony of conversation made in presence of decedent's wife admissible. Under this section, testimony offered by a plaintiff of conversations and agreements with a deceased in the presence of his wife who is a beneficiary of his estate and who is present at the trial is competent and admissible. Miller v. Hepner, 136 Colo. 48, 314 P.2d 604 (1957).

Heirs may testify to deceased's conversations after their sixteenth birthday. Any conversation or admission, or as to all matters and things connected with the subject matter of will contest may be testified to by the heirs of deceased where such conversations or admissions occurred after the heirs became "over the age of sixteen years". Brantner v. Papish, 109 Colo. 437, 126 P.2d 1032 (1942).

Person before whom deceased spoke must be present at the trial. The purpose of the exclusionary provision in the sixth subdivision is to prevent the despoiling of estates by testimony relating to transactions with persons who, by death, have been rendered unable to contradict such testimony. Where, however, an heir of the deceased was present at the transaction and was also present at the trial, it was considered that the heir would have a sufficient interest in preserving the assets of the estate to check any attempt to establish a fictitious claim against the estate or to its assets. Norris v. Bradshaw, 92 Colo. 34, 18 P.2d 467 (1932).

The words "member of the family" of the deceased, in the sense here used, include only such persons living with the deceased, as would inherit from him by the laws of descent. Others, such as heirs, legatees, and devisees, who do not live with deceased so as to constitute members of his family, are specially mentioned in the statute. Fagan v. Troutman, 25 Colo. App. 251, 138 P. 442 (1914).

G. Previous Testimony in Probate Proceedings.

Under paragraph (g), brothers of the testator were held properly admitted to deny statements made by the testator touching alleged troubles and controversies with them, the statements having been made in the presence of the proponent of the will, and the principal beneficiary thereunder. James v. James, 64 Colo. 133, 170 P. 285 (1918).

Under paragraph (g), the testimony of a widow in the county court, when cited and examined under § 15-10-106, was admissible in her behalf. Lane v. Lane, 57 Colo. 419, 140 P. 804 (1914).

Executor may also testify. This subsection is a further exception to the dead man's statute which specifically permits the executor named in a will to testify in a will contest. Estate of Freeman v. Young, 172 Colo. 322, 473 P.2d 704 (1970).