Hall v. Alexander

ORMOND, J. The interest which will disqualify a witness must be a certain, direct, and immediate interest, in the event of the suit; if it be contingent, or uncertain, it will go to his credit, and not to his competency. The distributees of this estate, having been offered as witnesses, and released all their interest to the administrator in the residue of the estate, were, upon this principle, competent to testify in behalf of the administrator. By that act, they precluded themselves from calling on him, for any farther portion, and there remains only the possibility that they may be compelled to refund to the administrator the portion they have already received of the estate, upon the ascertainment of subsequent debts.. Ifhis contingency is too remote to exclude them; it may possibly bias them, and will therefore to some extent [222] affect their credit. [Clarke v. Gannon, Ry. & M. 31; Greenl. on Ev. § 408.] The witness, Youngblood, in addition to standing in tho same relation with the previous witness, had also married a daughter of the intestate, and released to the administrator his wife’s future distributive share of the estate, This it was competent for him to do, and such release would bar his wife from asserting any right to it, although she survived him, and the release was without consideration. There is a distinction between a release, and an assignment of the wife’s chose in action by the husband. The latter will not be operative against the wife surviving her husband, unless founded on a valuable consideration, whilst the former is good without- any consideration. The reason of the distinction appears to be, that as the husband may bar the right of the wife by reducing into possession during his life, his release operating upon the subject by extinguishing the right, has the same effect. [Clancey on Rights, 110, and cases cited.] The introduction of the administrator, to prove to the court that there was a sufficiency of assets, to discharge the outstanding debts, was not proper. The case of Ex parte Simpson, 7 Ala. R. 842, is not an authority for the introduction of a party to the suit, under the circumstances of the present case. The rule in that case, is confined to the preparation of the suit for trial, and to such matters as are auxiliary merely to the main question - and although we are entirely satisfied with that case, it is not to be extended beyond the limits within which it is confined, by the precise condition upon which it is placed. Here, the purpose was, to lay the foundation for the introduction of a witness, by showing a state of facts, whieh would prove that the witness had no interest, and the witness, when introduced was to swear directly in his favor. It is obvious, that this case does not come within the principle of Ex parte Simpson. It is not collateral to the main question, but enters directly in it. The admission of the administrator to testify to these facts, did not, however prejudice the opposite party, because the witnesses, without this testimony, were fully competent upon the execution of the releases. It was then an error, with” [223] out injury, and therefore not available, within the rule of numerous decisions of this court. The argument against the introduction of these witnesses, upon the ground of public policy, canno t he sustained. It is true, it is difficult for the mind to divest itself of the idea, that there may not be something collusive in such releases as these, made without consideration. But that is an argument which proves too much, as it would sap the foundation upon which the doctrine of restoring the competency of a witness, by release, stands. He is thereby rendered legally competent, but the jury are under no obligation to believe him, and with them he may be very safely left. Let the judgment be affirmed.