Glover v. Gentry

HEAD, J. The testimony of Mrs. Glover and her husband, the plaintiff, touching her competency to testity to transactions had between her husband and the deceased, Moore, is different from that contained in the record when the case was before us on a former appeal, but we think it still establishes her incompetency. The statute (Acts, 1890-91, p. 557) excludes any one having a pecuniary interest in the result of the suit. ' The language is broad enough to include any pecuniary interest, absolute or contingent; and it further provides that no person who is an incompetent witness under the act shall make himself competent by transferring his interest to another. That the witness had, pending the suit, a contingent pecuniary interest in the note sued on, cannot be disputed. It is so plain, from the evidence, that a child may comprehend, that the efforts of the husband and wife to undo that which they had done, by which the wife acquired her interest, was for the express purpose of making her a competent witness in this case. The statute forbids all such enterprises. Moreover, the proof now shows that Mrs. Glover’s brother.paid her claim against him — the very contingency upon which her ownership of the note was to become absolute. That it was paid in land is of no consequence. If they saw proper to accept land instead of money, they could do so. But for the evidence of a re-transfer by Mrs. Glover to her husband, of her interest in the note, he could not, under the evidence, maintain this action as the party really interested. The re-transfer, however, as we have said, did not help her competency as a witness. Plaintiff’s only purpose in the offer to prove by his own testimony that the body of the note was written by him, was to tend to establish the disputed fact that the note was executed by the deceased, Moore, as written. The testimony proposed was of no conceivable value unless followed by evidence that plaintiff wrote it as deceased executed it. That fact plaintiff could not have testified to. In view of the issue as to the alleged fraudp [506] ulent alteration of the note, it might have been beneficial to the defendants to prove that it was written by the plaintiff, but we are unable to see how such proof could help the plaintiff. The other questions were passed upon adversely to the plaintiff on the former appeal. Affirmed.