#### E. L. ANDREWS, Administrator of J. ANDERSON SMITH, Deceased, v. B. C. SMITH and Wife, ROXIE SMITH, and the BANK OF GIBSONVILLE.

(Filed 4 December, 1929.)

1. Evidence D b — Provisions of O. S., 1795 may be waived.

The provisions of C. S., 1795, prohibiting testimony of transactions and communications with a deceased person, by a party in interest, may be waived by tbe adversary party.

2. Same — Party asking for examination of adverse party waives right to object to evidence so taken as communication with decedent.

Where an administrator brings proceedings under the provisions of C. S., 900, et seq.j to examine a defendant to discover assets of the estate of the deceased, the administrator waives the provisions of C. S., 1795, prohibiting testimony of transactions or communications with decedent, and the testimony thus taken may be introduced by the defendant in his own behalf.

Civil action, before Clement, J., at June Term, 1929, of Guilford.

Tbe plaintiff alleged tbat J. Anderson Smith died intestate on 8 November, 1927, and tbat on 28 May, 1927, said intestate bad on deposit in tbe defendant bank tbe sum of $2,425.04, for which a certificate of deposit bad been issued. Plaintiff further alleged tbat on 30 August, 1927, tbe defendants, B. C. Smith and Eoxie Smith, bis wife, obtained *35tbe certificate of deposit and bad tbe funds represented by said certificate transferred to tbeir own individual account, and tbat at tbe time of sucb transfer tbe intestate, J. Anderson Smith, was so weak in body and mind as to be incapable of understanding a business transaction. Plaintiff further alleged tbat some time prior to bis death tbe deceased, J. Anderson Smith, bad loaned to the defendant, B. 0. Smith, tbe sum of $1,200; tbat said defendant, B. C. Smith, bad executed and delivered to J. Anderson Smith a note for said sum and secured same by a, mortgage on real estate owned by said defendants, which said mortgage bad never been recorded, and tbat upon tbe death of J. Anderson Smith tbe said defendants took possession of all bis personal property and wrongfully withheld tbe same from tbe plaintiff, administrator.

Tbe defendants, Smith and wife, filed an answer alleging tbat they bad paid tbe note secured by tbe mortgage on tbe land; tbat J. Anderson Smith, for several years prior to bis death, bad lived in tbe home of said defendants, and tbat said intestate bad agreed to pay said defendants for support, and tbat tbe transfer of said certificate of deposit was made by tbe intestate as a payment to tbe defendants for care and maintenance.

Tbe defendant, Bank of G-ibsonville, filed an answer alleging tbat tbe transfer and assignment of said funds was valid and legal.

Tbe evidence tended to show tbat tbe defendant, B. C. Smith, was tbe step-son of tbe intestate, J. Anderson Smith, and tbat said step-son, after bis marriage, lived in tbe home of tbe intestate until tbe death of tbe mother of said defendant on 11 July, 1922. After tbe death of defendant’s mother bis step-father, J. Anderson Smith, lived in tbe home of B. C. Smith; tbat while tbe intestate was 74 years of age and feeble for some time prior to bis death, bis mental condition was good until a short time before bis death.

It appeared tbat tbe defendant, B. C. Smith, bad been examined before a commissioner appointed by tbe clerk at tbe instance of plaintiff on 9 July, 1928. Tbe affidavit filed by tbe plaintiff to procure tbe examination alleged tbat “J. Anderson Smith died intestate, leaving personal property of value and a considerable sum of money, but at tbe time of bis death be resided with tbe defendants and bad been residing with them for several years. . . . Tbat tbe defendants were familiar with bis business and knew tbe whereabouts of bis property and where bis money was deposited and where bis valuable papers were kept, . . . and tbat there is money and property either in tbe bands of defendants or in tbeir possession, or tbe whereabouts of which is well known to them. . . . Tbat affiant demands tbe right to examine tbe defendants before tbe trial of tbe above action to tbe end tbat be may elicit relevant testimony with reference to tbe matters and things referred to *36herein; . . . that the affiant is informed and believes that the deceased had on deposit in the bank or banks certain moneys belonging to him, and that said defendant, without the authority of deceased, withdrew said funds from said bank or banks, and either has the said funds or has disposed of same without making any account or report to this affiant with respect to the same, but the facts in connection with said matter are peculiarly within the knowledge of the defendants.”

Upon the affidavit, an order was duly made to examine said defendant, B. C. Smith, in accordance with C. S., sec. 900 et seq. At the trial, the defendant offered in evidence, in his own -behalf, his testimony so taken by the plaintiff. This testimony disclosed that the intestate had endorsed the certificate of deposit in controversy and delivered it to the defendant in payment of support, and that the mortgage indebtedness had been paid by the defendant to J. Anderson Smith and the mortgage burned.

Upon issues submitted the jury found that the deceased, J. Anderson Smith, had assigned to the defendants the certificate of deposit; that he had sufficient mental capacity to know and understand the effect of said act, and that the defendants were not indebted to the plaintiff administrator by virtue of the execution of the mortgage referred to in the evidence.

From judgment upon the verdict plaintiff appealed.

F. Eugene Hester and Frasier & Frazier for plaintiff.

Hines, Kelly & Boren and B. M. Boiinson for defendants.

BbogdeN, J.

The question of law is this: In a suit brought by an administrator of a deceased person, to recover assets of deceased, alleged to be in the custody of defendant, is the testimony of defendant to a transaction with deceased, taken before a commissioner under the provisions of C. S., 901, at the instance of plaintiff, competent, in behalf of defendant upon the trial of the cause, or should the same have been excluded by reason of the inhibition contained in C. S., 1795?

C. S., sections 900 to 908, not only prescribe the method by which an adverse party may be examined, but they also clearly disclose that testimony taken in accordance with the methods prescribed “may be read by either party on the trial.” It is contended, however, that testimony taken under C. S., section 900, et seq., is not competent in cases where such testimony would invade the boundary of C. S., 1795. It must be observed, however, that the wise protection established by C. S., 1795, may be waived. Meroney v. Avery, 64 N. C., 312; Norris v. Stewart, 105 N. C., 455, 10 S. E., 912; therefore, when an administrator examines the defendant upon oath as provided by C. S., section 900, he *37does so with full knowledge of tbe fact that tbe statute makes sueb evidence competent at tbe trial and is thus equivalent to a waiver of tbe provisions of C. S., 1795. Tbe case of Phillips v. Land Co., 174 N. C., 542, 94 S. E., 12, while not directly in point because of a fact setting different from tbe case at bar, tends to establish tbe competency of such evidence, irrespective of tbe inhibition of C. S., 1795.

We are of tbe opinion that tbe evidence was competent.

There was no objection to tbe issues submitted by tbe court, and hence tbe essential merits of tbe case have been established by tbe verdict of tbe jury.

We find no reversible error, and tbe judgment, as rendered, is approved.

No error.