control school affairs of the district, and plan and build, schoolhouses., The court says: "Power in the, school trustees to determine for themselves all matters, concerning the school structures to be erected, to the exclusion of the right of the municipality to impose police regulations, cannot be implied, from a grant solely of power to control school affairs of the district and plan and build schoolhouses. The constitutional right of the municipality to impose reasonable police regulations within its territorial limits, while it may be controlled by a general law, still such law must be

a positive and general law upon that subject. The power conferred on the trustees of the school district to erect schoolhouses is to be taken only as a grant of power to effectually carry out the purpose of their creation. As a public agency of the state, the trustees would have no such power unless it was specifically granted. As granted, it is no different as a power from what is possessed under the corporation laws of this state by private corporations, as far as controlling corporate property and the right to erect structures thereon is concerned, nor different from the right which the owners of land have to control it and erect buildings upon it. The erection of school buildings necessitates the making of plans therefor, just the same

a general law relieving it from compliance with the building regulations of the city of Pasadena, it was required to submit itself to and be governed by them."

And in Bowers v. Wright (1877) 4 W. N. C. (Pa.) 460, where a statute had been passed empowering the board of education of the city of Philadelphia to build a schoolhouse, all matters in connection with the building of said schoolhouse "to be under the direction of said board of education," and by another statute power was granted to the board of building inspectors of the city to control the matter, of issuing permits, for the erection of buildings, it was held that the board of education was required to obtain a permit from the board of building inspectors before, erecting a school building, and that they could not build a schoolhouse which did not conform to the regulations of the building inspectors. R. P. D.

2. In reviewing a decision upon a directed verdict, it is necessary to review the facts, taking the view of the evidence mest favorable to the conten

tions of the one against whom the verdict was directed.

[See 2 R. C. L. 198; 1 R. C. L. Supp. 437; 4 R. C. L. Supp. 91.]

The facts are stated in the opinion Messrs. Walter Chandler and J. H. Shepherd, for plaintiffs in certiorari: The evidence attempted to be introduced by plaintiff as to the handwriting of decedent was inadmissible.

Mason v. Spurlock, 4 Baxt. 554; Montague v. Thomason, 91 Tenn. 168, 18 S. W. 264; Roy v. Sanford, 140 Tenn. 382, 204 S. W. 1159; Stuckey v. Bellah, 41 Ala. 700; Neely v. Carter, 96 Ga. 197, 23 S. E. 313; Holliday v. McKinne, 22 Fla. 153; Ware v. Burch, 148 Ala. 529, 42 So. 562, 12 Ann. Cas. 669; Kirksey v. Kirksey, 41 Ala. 626; Merritt v. Straw, 6 Ind. App. 360, 33 N. E. 657.

Mr. Raymond O. Valley, for defendant in certiorari:

A party to a suit, interested in the recovery, can testify that an instrument which is the basis of the suit or defense is in, or is signed in, the handwriting of a deceased person, an opposite party in interest, after qualifying by showing that he knows the handwriting of the deceased.

Minnis v. Abrams, 105 Tenn. 662, 80 Am. St. Rep. 913, 58 N. W. 645; Royston v. McCulley,

Tenn. -, 52 L.R.A. 899, 59 S. W. 725; 30 Am. & Eng. Enc. Law, 2d ed. 1033; Sankey v. Cook, 82 Iowa, 125, 47 N. W. 1077; Re Brown, 92 Iowa, 379, 60 N. W. 659; Ferebee v. Pritchard, 112 N. C. 83, 16 S. E. 903; Rush v. Steed, 91 N. C. 226; Re La Grange, 191 Iowa, 129, 181 N. W. 807; Britt v. Hall, 116 Iowa, 564, 90 N. W. 340; Bryan v. Palmer, 83 Kan. 298, 111 Pac. 443, 21 Ann. Cas. 1214; Dillon v. Gray, 87 Kan. 129, 123 Pac. 878; Daniels v. Foster, 26 Wis. 686; Munger v. Myers, 96 Kan. 745, 153 Pac. 497; Fitch v. Martin, 84 Neb. 745, 122 N. W. 51; State ex rel. Peoples v. Maxwell, 64 N. C. 313; Halyburton v. Dobson, 65 N. C. 88; Ballard v. Ballard, 75 N. C. 190; Rush v. Steed, 91 N. C. 226; Armfield v. Colvert, 103 N. C. 147, 9 S. E. 461; Sawyer v. Grandy, 113 N.

of the court.

C. 42, 18 S. E. 79; Simmons v. Havens, 101 N. Y. 427, 5 N. E. 73; Eagan v. Powers, 51 Hun, 642, 4 N. Y. Supp. 592; Wing v. Bliss, 55 Hun, 603, 8 N. Y. Supp. 500; Dolan v. Leary, 68 N. Y. Supp. 91; Boyd v. Boyd, 164 N. Y. 234, 58 N. E. 118; Walker v. Pittman, 18 Tex. Civ. App. 519, 46 S. W. 117; Williams v. Farmers' Nat. Bank, Tex. Civ. App. 201 S. W. 1083; Sawyer v. Choate, 92 Wis. 533, 66 N. W. 689; Slavin v. Ackman, 119 Wash. 48, 204 Pac. 816; Josephs v. Briant, 115 Ark. 538, 172 S. W. 1002, Ann. Cas. 1916E, 741; Johnson v. Bee, 84 W. Va. 532, 7 A.L.R. 252, 100 S. E. 485.

Malone, Special Judge, delivered the opinion of the court:

This case comes before the court upon petition for certiorari.

He

The respondent, Bruce York, filed a claim against the estate of W. J. Klein, deceased, in the probate court of Shelby county, in the principal sum of $675, basing his claim upon a note which had become lost. filed a copy of the note with his claim. The claim having been allowed, the petitioners here, beneficiaries of the estate of the said W. J. Klein, appealed the case to the circuit court, where the same was tried before a jury, under a plea of non est factum interposed by the administratrix of the estate. After certain evidence, including the evidence of the respondent York, had been heard, the trial judge instructed the jury to bring in a verdict disallowing the claim, which was accordingly done.

York, the plaintiff below, appealed the case to the court of civil appeals, which court, in an opinion

by Mr. Justice Clark, reversed and remanded the case.

The question earnestly and ably debated here is this:

Could York, the claimant and plaintiff below, be allowed to testify that he had had in his possession a note in the handwriting of the decedent, and bearing the genuine signature of the decedent, proving the amount and terms of the note by other witnesses?

On behalf of the petitioners it is claimed that to permit such action is to permit an evasion of the Tennessee statute (Shannon's Comp. § 5598), which provides: "In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party. 1869-70, chap. 78, § 2."

On behalf of the respondent it is insisted that proving the signature of a note was not proving a transaction or conversation with, or statement by, the decedent within the meaning of this act.

The trial judge adopted the view of the petitioners, and the court of civil appeals accepted the view of the respondent.

Appeal-review

dict.

As the case was decided below on a directed verdict, it becomes necessary to review the facts, taking that view of the evidence of directed ver- most favorable to the contentions of the plaintiff below, against whom the verdict was directed. Wildman Mfg. Co. v. Davenport Hosiery Mills (1923) 147 Tenn. 551, 249 S. W. 984.

The plaintiff below, Bruce York, was allowed to state that he was acquainted with the decedent; that he had several business transactions with him; that he had a transaction involving a note; that the note was not in his possession; that he borrowed money from Dr. Graham, and

put up this note as collateral; that Dr. Graham claimed to have given the note back to plaintiff, but if he did plaintiff could not find it, and did not know what had become of it, after diligent search; that the note, while in the possession of Dr. Graham, became due, was not paid, and was protested; that he had a certified copy of the protest by the notary public, and filed the same as an exhibit.

He further testified as follows:

Q. I believe you stated you had several different transactions with the deceased?

A. Yes, sir.

Q. I will ask you if you are acquainted with the handwriting of the deceased?

A. Yes, sir.

Q. I will ask you if the handwriting and the signature of this note that you had in your possession was in the handwriting of the deceased?

A. Yes, sir.

All of this testimony was objected to by the administratrix, on the ground that it was testimony relating to a transaction with a deceased person, and was incompetent under the statute already mentioned.

While this objection was being argued, and before the court ruled on the admissibility of the testimony, two other witnesses for plaintiff appeared in court, and for their convenience they were then examined.

The first of these witnesses, George B. Coleman, testified that he was called by the National City Bank to protest a note; that he went to the bank and was given a note signed by W. J. Klein, the decedent, indorsed by Dr. Frank Graham and by Bruce York, payable at the First National Bank; that he presented the note to the First National Bank, which declined to pay it; that he thereupon, as a notary public, protested the note for nonpayment, his certificate of protest containing a verbatim copy of the note, which was read into the record as follows:

"$675.00

The witness identified this copy as an accurate copy in every detail of the note which he protested, and filed as an exhibit to his testimony a duplicate carbon copy of the certificate of protest.

The other witness, Dr. Frank Graham, testified that he loaned Bruce York some money, and took as collateral security a note for "600 some odd dollars that was signed by Mr. Klein;" that the copy handed him was, according to his recollection, a copy of the note which Mr. York gave him as collateral security; that the note fell due while in the possession of witness, and was not paid, and witness had the National City Bank protest the same for nonpayment; that as a result of certain transactions, stated in detail, he treated the loan as paid, and returned to York the Klein note which had been put up as collateral; that he had not seen this note since he gave it to Mr. York; that he loaned the money to York between November and December, 1920, as he recollected; that he does not recall paying any particular attention to the signature of the note, but does recall the fact that the note was signed by a man who owned his farm at that time, and witness believed this would make the note perfectly good.

The court then ruled on the objection to plaintiff's testimony, saying: "In this case it is sought to show, if the court understands aright, that the plaintiff may testify as to whether he knew the handwriting of the deceased and whether

the signature on the note is in the handwriting of the deceased. The court holds that the signature on the note is a part of the transaction and part of the matter in contest between them, and that it is incompetent for the plaintiff, an interested party, to testify that the signature on the note is in the handwriting of the deceased, W. J. Klein."

At the end of this testimony the plaintiff rested, and counsel for the administratrix made a motion for a directed verdict, whereupon the court granted the motion and instructed the jury that, "under a rule of law, there can be no recovery in this suit now, under the evidence adduced in this case relative to the note."

In his motion for a new trial the plaintiff York specified, among other grounds, the following:

(a) That the court was in error in refusing to allow the following testimony of plaintiff, Bruce York, to go to the jury:

Q. I will ask you if the handwriting and the signature of this note that you had in your possession was in the handwriting of the deceased?

A. Yes, sir.

(b) That the court was in error under the testimony adduced. in directing a verdict for defendants.

It seems to be conceded in the briefs of both parties that the determinative question is the competency or incompetency of the plaintiff's evidence, already quoted, as to the handwriting and signature of the note.

There are two conflicting lines of cases on this question.

The petitioners cite and rely upon the cases of Neely v. Carter, 96 Ga. 197, 23 S. E. 313; Holliday v. McKinne, 22 Fla. 153; Ware v. Burch, 148 Ala. 529, 42 So. 562, 12 Ann. Cas. 669; Kirksey v. Kirksey, 41 Ala. 626; Merritt v. Straw, 6 Ind. App. 360, 33 N. E. 657.

They also rely upon the reasoning of this court in the cases of Mason v. Spurlock, 4 Baxt. 554;

Montague v. Thomason, 91 Tenn. 168, 18 S. W. 264; Roy v. Sanford, 140 Tenn. 382, 204 S. W. 1159.

The respondent here, plaintiff below, in support of the judgment of the court of civil appeals, insists that the question is decided by our own cases of Minnis v. Abrams (1900) 105 Tenn. 662, 80 Am. St. Rep. 913, 58 S. W. 645, and Royston v. McCulley (1900) - Tenn. -, 52 L.R.A. 899, 59 S. W. 725.

And he further contends that the clear weight of authority supports this view as to competency of this evidence-citing 30 Am. & Eng. Enc. Law, 2d ed. 1033; Sankey v. Cook (1891) 82 Iowa, 125, 47 N. W. 1077; Re Brown, 92 Iowa, 379, 60 N. W. 659; Ferebee v. Pritchard, 112 N. C. 83, 16 S. E. 903; Rush v. Steed, 91 N. C. 226; Re La Grange (March, 1921) 191 Iowa, 129, 181 N. W. 807; Britt v. Hall, 116 Iowa, 564, 90 N. W. 340; Bryan v. Palmer (1910) 83 Kan. 298, 111 Pac. 443, 21 Ann. Cas. 1214; Dillon v. Gray (1912) 87 Kan. 129, 123 Pac. 878; Munger v. Myers (1915) 96 Kan. 745, 153 Pac. 497; Fitch v. Martin (1909) 84 Neb. 745, 122 N. W. 51; State ex rel. Peoples v. Maxwell, 64 N. C. 313; Halyburton v. Dobson, 65 N. C. 88; Ballard v. Ballard, 75 N. C. 190; Armfield v. Colvert, 103 N. C. 147, 156, 9 S. E. 461; Sawyer v. Grandy, 113 N. C. 42, 18 S. E. 79; Simmons v. Havens (1886) 101 N. Y. 427, 5 N. E. 73; Eagan v. Powers, 51 Hun, 642, 4 N. Y. Supp. 592; Wing v. Bliss, 55 Hun, 603, 8 N. Y. Supp. 500; Dolan v. Leary (1901; Sup.) 68 N. Y. Supp. 91; Boyd v. Boyd, 164 N. Y. 234, 58 N. E. 118; Walker v. Pittman (1898) 18 Tex. Civ. App. 519, 46 S. W. 117; Williams v. Farmers' Nat. Bank (1918)

Tex. Civ. App. —, 201 S. W. 1083; Daniels v. Foster, 26 Wis. 686; Sawyer v. Choate, 92 Wis. 533, 66 N. W. 689; Josephs v. Briant (1914) 115 Ark. 538, 172 S. W. 1002, Ann. Cas. 1916E, 741; Johnson v. Bee (1919) 84 W. Va. 532, 7 A.L.R. 252, 256, 257, 100 S. E. 486.

1. The reasoning of the line of cases cited by the petitioners is

shown in the following extract from Neely v. Carter, supra, where the court, after stating that the alleged grantee under a lost deed could not testify to the fact that she saw a deceased grantor sign the deed, further says (96 Ga. 201-203): "We think it quite clear that she could not be permitted to testify indirectly to that which she would not be permitted to swear to directly. To swear to the genuineness of a signature purporting to have been made by one of the deceased makers would only be another way of proving the physical fact of execution. Such proof would be merely secondary evidence, the object of which would be to supply the place of direct evidence of actual execution, in a case where higher and more satisfactory proof of that fact was not forthcoming or available. The policy of the law, which clearly would exclude Mrs. Carter from giving direct evidence of execution, likewise would render her incapable of giving evidence of a secondary character which would accomplish the same result, and which, indeed, would be worthless for any other purpose than that of supplying the very evidence she would be precluded from giving by direct and positive proof. No other view of the question seems tenable. . . . The temptation of a witness to swear falsely when offered to supply secondary evidence is just as strong as when the witness is called upon for positive proof; while the fear of punishment for perjury, remote at best, is almost if not entirely removed where a witness merely undertakes to state his opinion as to the genuineness of a given signature, instead of positively asserting direct knowledge of the fact of the execution of a paper."

It is further argued in the able brief filed on behalf of petitioners that to permit plaintiff's evidence in the present case would be to establish a rule whereby estates of decedents might be defrauded in the following manner:

An unscrupulous person might