Davis v. Davis's Estate

The opinion of the court was delivered by Ross, J. The deposition of Mrs. Minnie J. Davis was improperly received in evidence by the referee. In the citation served [505] on tbe appellant for taking the deposition, no magistrate was named before whom the deposition would be taken. This alone renders the deposition inadmissible, as was decided at the General Term, in St. Johnsbury v. Goodenough, 44 Vt. 662. We also think, on the facts reported, the deponent was disqualified to testify in the case. She is the wife of the administrator, and the widow of the intestate. She is not disqualified by reason of being the widow of the intestate, but that relation to the intestate makes her directly interested in the estate, and in the allowance of the appellant’s claim against the estate. The administrator being her husband, is interested in her interest in the estate, and in this way is interested in the event of the suit beyond what he would be in his administrative capacity. As administrator ho is a necessary party to the proceedings, and may be personally liable for the costs. He is also brother of the intestate, and for aught that, appears in the facts reported, may be interested in the estate as heir. He stands related to the suit, not as a nominal party merely, but as an interested party. His wife cannot be a witness for or against him, not on the ground of her intenst in the event of the suit — that disqualification is removed by the statute of 1852 — but from policy, because of the existence of the marital relation between her and the administrator, who is both a necessary and an interested party to the proceedings. The deposition of Mrs. Seymour Bush was properly received by the referee. There is nothing in the record which shows that the citation has been changed since it was issued and served. The name of the county in which the town of Northfield is situated, has been changed since the citation was first written ; but there is nothing to show that it has been done since it was served. This court is not to presume that error in that respect has intervened. No complaint is made but that ample notice of the time of taking the deposition was given, but it is objected that the caption shows it was to be used before the referee here in Vermont on the same day the plaintiff was notified to be present in Minnesota at the taking of the deposition, and that it is unreasonable to require the plaintiff to leave the hearing here, to be present at the taking of the deposition in Minnesota — that there was not suf [506] ficient time for him to return from the place of taking to the place of hearing, before the hearing was to be had. This would be a good ground for rejecting the deposition if the record showed that it was in fact taken to be used on that day. It was taken July 13th, and there is nothing in the record which shows that any hearing was appointed to be held on that day. On the contrary, it appears affirmatively that' the deposition was first offered, opened, and used at a hearing had October 1st of the same year. We think that, rejecting the specific day named in the caption for the hearing, the cause in which the deposition is taken to be used is described in the caption with sufficient definiteness to answer the requirements of the statute. As the report of the referee is in favor of the plaintiff if both depositions are rejected, and in favor of the defendant if both are admitted, and as there is no finding as to how the cause should be determined with Mrs. Davis’s deposition rejected, and with Mrs. Bush’s deposition admitted, this court cannot render judgment on the report. The judgment of the County Court is therefore reversed, and cause remanded, for the County Court to recommit the report, for the finding of further facts.