Plaintiffs aver that they are the heirs at law of J. B. Waters, deceased, who departed this life in the month of August, 1885; that the defendant, H. P. Waters, and said J. B. Waters, were each the owners of an undivided half of certain real estate, and that upon the death of said J. B. Waters the plaintiffs became the owner of his interest by inheritance; that the defendant has received the rents and profits of said-real estate.
Decided 1878-06-08
Rothrock, Ch. J.
¶11. TENANT i The defendant was examined as a witness in his own behalf. His wife was also examined as a witness. The plaintiffs objected to their testimony as incompetent, because the facts detailed by them were in the nature of personal transactions and communications had with John B. Waters, deceased. It does not appear that any ruling was made by the court upon this objection, excepting that appellants assign as error that the court disregarded the testimony of said witnesses. Under these circumstances it is proper that such of their testimony as was in the nature of personal transactions and communications with the deceased, should be excluded. The cause is triable de novo in this court, and after rejecting this incompetent testimony there is little left to.support the defendant’s cross-claim. It appears generally, from some letters written by the deceased, that he acknowledged an indebtedness to the defendant, but in what amount does not appear, except from, the testimony of the defendant and his wife. We can*557not ascertain from the abstract whether any of the claims accrued after the decease of John B. Waters.
¶2About the only evidence which is definite and certain is the amount of rents received by defendant from the real estate, and certain items which were expended by him for repairs. It is not even shown what amounts he has paid in taxes since the death of John B. Waters.
¶3It is not necessary for this court to determine whether the claims made by defendant, which accrued in the life-time of the deceased, are properly chargeable upon the land, because we think there is no competent evidence to establish said claims.
¶4Taking the evidence that is definite and certain, the conclusion we reach is that the court below did not err in its finding as to the amount due.
