Can a plaintiff in a personal injury action against the executrix of a deceased's estate testify before the death of the deceased?

California, United States of America


The following excerpt is from Simon v. Bank of America, 209 Cal.App.2d 21, 25 Cal.Rptr. 654 (Cal. App. 1962):

Appellant, at oral argument, cited and relied on Bernkrant v. Fowler, 55 Cal.2d 588, 12 Cal.Rptr. 266, 360 P.2d 906. That case is too remote in its facts to constitute persuasive authority for appellant's position in the case at bar. It was there concluded that where the plaintiffs' action against an executrix did not seek a money judgment, enforceable against the assets of the estate, but sought only a determination that their debt to the decedent had been discharged, they were not precluded by subdivision 3 of section 1880 of the Code of Civil Procedure from testifying to events occurring prior to the death of the decedent. The holding obviously rests on the fact that the type of action there involved and the nature of the relief sought brought that case outside the ambit of the privilege. It therefore does not operate as a liberalization of the statute.

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