Barber's Adm'r v. Bennett

The opinion of the court was delivered by Rowell, J. The cause of action in this case, if any there be, is non-negotiable and was assigned to Mrs. Jewett, the intestate’s daughter, before suit brought, who thereby became [665] the equitable owner thereof, and the suit is prosecuted for her benefit; so she is plaintiff in interest. One item sought to be recovered is for defendant’s board in the intestate’s family from October, 1867, to October, 1870, during most of which time Mrs. Jewett and her husband were also members of the family, and Mrs. Jewett had knowledge of the justness of the item. The defendant showed by several witnesses that before 1871, which was long before the assignment to her, Mrs. Jewett said that the defendant more than paid-his board while he lived in the family. Mrs. Jewett was a witness, and denied having made such statements. In the charge the.court limited the testimony to the impeachment of Mrs. Jewett, and denied its competency as tending to show the fact of payment, to which the defendant excepted, and we think the exception broad enough to raise the question. Robinson v. Hutchinson, 31 Vt. 443, if followed, is decisive on this point. There a will was contested on the ground of want of testamentary capacity, and undue influence‘of the executor and his brother, who were sons of the testatrix and legatees under the will. The contestants proved that at one time when his mother was sick, about four years before the will was made, the executor said she “ did not know what she was talking about ”; and this was held proper, because he had consented to act as executor, and had taken upon himself the duty of sustaining the will, and was interested in its provisions. It is not important that the executor was a party of record as well as in interest, for the law looks chiefly to the real parties in ‘interest, and regards them as though they were parties of record — 1 Greenl. Ev. s. 180; 1 Phil. Ev. *486; Hanson v. Parker, 1 Wils. 257 — while, on the other hand, the admissions of a party of record who is a mere trustee, or whose name is used as matter of form, are not receivable. Sargeant v. Sargeant, 18 Vt. 371. Nor, as we shall see hereafter, are the admissions of one who sues in a representative capacity only, unless made while that character was sustained [666] We think Robinson v. Hutchinson is sound, though Burton v. Scott, 3 Rand. (Va.) 399, is a similar case, and decides the other way, on the ground that the rule, that the admissions of a party are evidence against him, rests upon the presumption that no one will make a declaration against his own interest unless it is true, and hence, that the interest must exist when the declaration is made. If this were the true ground of the rule, the logic of that case is irresistible. But it is not the true ground. The mistake lies in supposing the presumption to be the test of admissibility, whereas it is only a test of credibility ; for, as said by Professor Greenleaf, in regard to many admissions - it cannot be supposed that at .the time of making them the party believed they were against his interest, but often the contrary. Therefore, he says, such evidence seems to be more properly admissible as a substitute for the ordinary legal proof. 1 Greenl. Ev. s. 169. Mr. Wharton says it is admissible, either as yielding presumptions against the party charged, or as.relieving (under ordinary circumstances) the party offering it from the necessity of more formal proof. 2 Whart. Ev. s. 1077. Mr. Justice Stephen defines an admission to be a statement that suggests an inference as to a fact in issue or a fact that is relevant or deemed to be relevant to such fact, made by or on behalf of a party to a proceeding; and says that every admission is deemed to be a relevant fact as against the person making it, except in certain cases; as, when made by a person suing or sued in a representative character only, in which case it must be made while the person making it sustained that character. Steph. Dig. Ev. 53, 54. Dent v. Dent, 3 Gill, 482, to which we have been referred, comes within this exception; and there are many other cases to the same effect. So when by succession of title a party to a suit is so far in privity with another that he could be affected by his acts, then he can be affected by his admissions only when they are made during the latter’s interest in the subject-matter of the suit; for then only can he engraft them upon the interest so that they will [667] follow it into the bands of his successor. But as to the self-disserving declarations of the real party to the suit, this, as we have seen, is not the test of admissibility. And although the best text writers do not all suggest precisely the same ground of admissibility, yet we venture to say that it is a sufficient ground that they are the declarations of a party in interest and are relevant to the issue. This view renders it unnecessary to consider the other exception. Judgment reversed and cause remanded.