Whitaker v. Marsh

Clark, J. The heirs-at-law of Hannah Marsh seek to recover for the benefit of her estate the amount of certain claims made against the administrator of the estate. In this proceeding the functions and powers of the appellee as administrator are suspended, and the estate- is represented by the appellants. Tuck v. Nelson, ante 469; Perkins v. Perkins, 58 N. H. 405; Ela v. Edwards, 97 Mass. 318. One of the appellants representing the estate having elected to testify, the testimony of the appellee was not excluded by Gen. Laws, c. 228, s. 16. As a genei’al rule, the testimony of a deceased witness given on a former trial is competent in a subsequent trial of the same action. Young v. Dearborn, 22 N. H. 372. In State v. Staples, 47 N. H. 113, 119, the court say, — “We have not known a practice in this state, where the witness is alive and within the jurisdiction of the court, and in criminal proceedings, to allow the former statements of the witness to be used. . . . The evidence of a witness in the same cause, and at a former trial, is not admissible, until it has been first proved that he is dead.” This limitation of the rule is not well founded. The reasons for admitting this class of secondary evidence in the case of a deceased witness, apply with equal force in the case of a witness mentally dead, or incapacitated *479 by insanity, or loss of mind from any other cause. If the evidence was otherwise competent, we think the ruling of the court, admitting the testimony of the appellee before the probate court, is sustained by the weight of reason and the preponderance of authority. 1 Gr. Ev., s. 163; Whar. Ev., s. 177; Howard v. Patrick, 38 Mich. 795; Rothrock v. Grallaher, 91 Pa. St. 108; Marler v. State, 67 Ala. 55 (S. C., 42 Am. Rep. 95), and cases cited. The evidence that the money of the deceased wife, deposited in savings-banks and invested in stocks, stood in her own name, or in the name of the appellee or trustee, for her, and that the $2,000 was loaned and the note given therefor made payable to the appellee with lie]1 knowledge and without objection on her part, was competent as tending to show that she regarded the $2,000 as the money of the appellee. The declarations of the deceased, not in the appellee’s presence, to the effect that she never intended to give the $2,000 to the appellee, being declarations made by the deceased in her own favor, were properly excluded. JExceptions overruled, and decree of probate court affirmed. Carpenter, J., did not sit: the others concurred.