Edgell v. Bennett

[536] The opinion of the court was delivered by Williams, J. The title of the plaintiff is by the levy of an' execution in his favor against Micajah M. Lowell. The defend-aDts5 ls ^ deed fr°in the same person of a date prior to the levy. The plaintiff contends, that the defendants’ deed was fraudulent. Under a charge of the court, in which the law was very correctly given the jury, the title of the defendants was found to be fraudulent. In the course of the trial, Lo^is Lowell, who was the widow of Micajah, the fraudulent grantor, was introduced as a witness. It appears that she was objected to, and was admitted by the court to testify. The inquiry now' is, whether she was a competent witness; and this must depend on the question, whether she had any direct interest in the matter in controversy. During coverture, the wife cannot be a witness where the husband has an interest. After the dissolution of the marriage by the death of the husband, she may be a witness, if not interested herself, and if the facts to which she is called to testify are such-as are proper for her t-o relate. It was therefore no objection to this witness that her husband in his lifetime could not have been a witness ;■ and there are no facts presented by the case by which vve learn that she had any interest herself in the suit. It is true, that if the plaintiff fails to recover, he would be a creditor to the estate of her late husband for the amount of his execution ; and it is also true, that the widow has an interest in some cases to prevent debts from coming against the estate, and also to increase the personal fund. Though not an heir, as was said in the argument, yet she is entitled to such portion of-the persona] estate as the court of probate shall think - proper to'assign to her, which shall not be less than one third which shall remain after the payment of the debts and funeral charges. If, therefore, her husband bad died in this state, and left personal property more than enough to pay his debts, the witness would have an' interest; to have the plaintiff recover the lands levied on, and not on failure to recover come in - as a creditor to the estate of her husband. To create-this interest,1 however, it must have appeared that her husband-died in this state the owner of personal estate, or left estate here tp be administered-upon.1 Neither of-these facts are presented iff the case, and the inference is strong, that neither of them is true. We cannot discover that she had any interest in the event of the suit which should exclude her from being a witness. It does not appear that any question was ¡nade to the county [537] court whether the facts to which she testified were of that nature that she could not with propriety testify ,to them. It has been argued here, however, that her testimony as to the declarations of her husband ought not to have been received. The declarations of a grantor, after making and delivering a deed, are not to be received to prove it fraudulent, and if testimony to that effect, whether coming from this witness or any one else, had been directly objected to and admitted by the court, the verdict must have been set aside. If the declarations of the husband were received as evidence of the facts related by him, it was mere hearsay, and therefore inadmissible; or if they were received to contradict the testimony which he had given on a former trial, (for it seems his testimony on a former trial was given in evidence in this,) they were inadmissible as conversations which had passed between husband and wife during coverture, and which are to be kept inviolable as family confidential conversations.—Munroe vs. Twistleton, Peake on Evidence, appendix 44. Doker, Ex’r Doker, vs. Hasler, Ryan and Moseley, N. P. Cases, 148. None of these objections appear to have been made and presented to the court below, nor does the testimony of Mrs. Lowell appear to be of the character mentioned, but was principally in relation to the doings and sayings of Gideon Lowell, one of the defendants. We see nothing in her testimony to which she would have been precluded from testify ing in the life-time of her husband, except the declarations of her husband after the execution of the deed; and it does not appear that this was objected to on that ground, or that the county court have decided that such testimony was admissible. There is no ground on which we ought to send this case to another trial, or reverse the judgment of the county court. The motion for a new trial on account of the jury separating is in effect disposed of by the decision of the court in the.case of Bliss vs. Kittridge. It was a motion addressed to the discretion of the 'county court, and their decision thereon is not subject to rc-visi on in this court. The judgment of the county court is-affirmed.