Pierce's Administrator v. Pierce

TAFT, J. The important question in this case is whether any of the money of the orator’s intestate was used in paying the Poultney Bank mortgage. The master reports that he is “ unable to find that any more than one thousand two hundred dollars out of said one thousand nine hundred dollars was applied by Nathan to that debt.” Treating this argumentative statement as an affirmative finding that one thousand two hundred dollars was so applied, the questions of evidence raised by the exceptions to the report become material. There are three exceptions in respect to the evidence. I. Nathan Pierce wrote a letter to his brother Marcellus stating that he, Nathan, had used some of his (the brother’s) money in paying the bank mortgage. The master admitted this letter, with others of like import, as tending to show the truth of the statements contained therein. The orator contends they were admissible upon the ground that Nathan was agent of the defendant; that fact, however, does not appear, but the contrary is apparent from the report. Although the defendant suffered Nathan to manage the property as his necessities required and joined with him in the mortgage, the debt secured thereby was the debt of Nathan and in paying it he was acting for himself, not for her. It is true she was interested in having the debt paid, but she was not paying it, her husband was doing that, and his declarations and admissions in so doing were not binding — 374 — .upon her. The letters were not admissible upon the ground that the statements contained in them were admissions made by her agent, for Nathan was not acting for her in the transactions to which the letters related. For the same reason, if the letters were a part of the res gestae, which we do not decide, they could not be admitted to affect the rights of the defendant, in any respect, for they were no part of any transaction to which she was a party. Neither were they admissible as the act of a co-conspirator, for it is not shown by legitimate evidence, if at all, that the defendant knew of the use of the money as alleged, until long after its payment. II. Six months before Nathan’s death he stated to one of the children of Marcellus, in the presence of the defendant, that he had used the money belonging to the children of Marcellus in paying the bank mortgage. The defendant made no response. This declaration the master received in evidence to establish the fact stated. We think it was not legitimate testimony. It was a mere declaration of Nathan, not made in response to any inquiry, certainly not in response to any inquiry made of the defendant. Under such circumstances she was under no obligation to reply to the declarations of her husband. She was not called upon to speak and her silence could not be shown in evidence against her. Hackett v. Callender, 32 Vt. 97; Durant v. Pratt, 55 Vt. 270, and cases hereinafter cited. III. A day or two before Nathan’s death, when he was so low that he could talk but very little and could be heard with difficulty, the orator had an interview with him. The defendant repeated to the orator, for the most part, what she understood Nathan to say. Nathan made the same statements as those contained in the letters and that made six months before his death, as above stated, and said that the defendant knew all about it, and would see that the amount, so taken by him to pay on the bank mortgage, was paid. — 375 — The master finds that at this interview, the defendant 1 ‘ acquiesced in all that her husband said,” and said the amount should be paid. The word acquiesced used in this connection is quite equivocal. Does it mean that she made any response, or acquiesced by her silence? Webster gives the principal definition of “ to acquiesce ” as “ to acceptor consent by silence or by omitting to object.” If the master means that she acquiesced by remaining silent, then to give her acquiescence any force as evidence against her, it should have appeared that she was in a situation in which it was her duty to speak. The interview was with her husband, not with her; it does not appear that she was inquired of in the matter. If she was not called upon to speak, was not inquired of, and made no response, then there was no such acquiescence as would bind her, nor justify the master in finding from her silence any admission of the truth of Nathan’s statements. Whether a person is bound to speak when statements and declarations adverse to his interests are made, is often a perplexing question, and it is difficult to state a rule applicable to all cases, as the question so often depends upon the circumstances attending each case. It has often been before our courts and the rule deducible from the cases seems to be this, evidence that a party remained silent when declarations adverse to his interests are made in his hearing and presence, may be heard by the trier when the occasion upon which the declaration is made calls for admission or denial on his part. In other words, whenever he is called upon to speak; whenever the circumstances demand a reply. Vail v. Strong, 10 Vt. 457: Gale v. Lincoln, 11 Vt. 152; Mattocks v. Lyman, 16 Vt. 113; Vilas v. Downer, 21 Vt. 419; Hersey v. Barton, 23 Vt. 685; Brainard v. Buck, 25 Vt. 573; McCann v. Hallock, 30 Vt. 235; Brown v. Mudgett, 40 Vt. 68; Perry v. Dow, 59 Vt. 61; Frary v. Gusha, Ib. 257. In 30 Vt. 235, it is said if the inquiries are made for the — 376 — purpose of obtaining evidence, that the party has a right to remain silent without being prejudiced thereby. In 16 Vt. 113, it is stated that unless a claim is asserted and distinctly made to the party, and calling naturally for a reply, mere silence is no ground for inference against him, and we think even in such a case that mere silence ought not to conclude a party unless he thereby induces one to act upon his silence, in a manner different from what he otherwise would have*acted; unless the party asserting the claim does it with a view to ascertain the claim of the other in order to know how to regulate his own conduct in the matter, and this is known to the other party, who remains silent, and thereby leads the other party astray, mere silence is no ground of inference against such other party. In 23 Vt. 685, it is announced that if the inquiries are made under such circumstances as demand a reply, that silence is a species of evidence of doubtful character, and in 10 Vt. 457, that the strength of the evidence depends altogether upon the force of the circumstances and the motives which impel a denial, if the statements are untrue. When inquiries are made of one under circumstances that call for a reply, they must be made at a time, and under circumstances, when inquiries are proper. Steph. Dig. of Ev. 51, note. It was held that one may remain silent when engaged in a trial in Broyles v. State, 47 Ind. 251. A person is always at liberty to show (40 Vt. 68) under what circumstances he used the expressions relied upon to charge him. What a man says under the surprise of a sudden and unexpected demand for money ought to be construed with a good deal of strictness. May v. Coffin, 4 Mass. 347. As qualifying declarations, it may be shown that a person is in poor health, hypochondriacal, and in depressed spirits. Brackett v. Wait, 6 Vt. 411. If a person make any statements upon the subject inquired of, he then makes all that is said to him on the occasion and — 377 — his silence as well as his answers, evidence to go to the jury, and they are to determine its weight. 30 Vt. 235. Any response that the defendant made to the statements of her husband, whether she was called upon to speak or 'not, if she did speak, was admissible against her and legitimate evidence upon the question of whether she admitted that the one thousand two hundred dollars was used in paying the bank mortgage. Her promise that it should be paid, if she made such a promise, was evidence for the same purpose. It will be noted that the master does not find that the defendant promised that she would pay the money, but “ said that it should be paid,” whether by her, or by her husband, for whom she was then speaking, is not clearly apparent. In this case the great difficulty lies in determining whether the defendant was bound to make any reply to the statements of her husband. Under the circumstances we do not think she was. She was at the bedside of her dying husband. He was in the throes of death and the wife was under no duty to respond to any statements made by him, and ought not to have been compelled to answer nor deny his statements, if false. The construction we give the report is that she acquiesced, in what her husband said, by silence; and as we think she had a right to remain silent, was not called upon to speak, from her silence alone no adverse inferences can be dráwn against her. The master reports that she said the debt should be paid. This is evidence tending to show that she admitted the existence of the debt. All the circumstances, however, attending the statement should be considered. If she said it merely .to please her dying companion, without knowing its truth, its force might vary greatly from an admission made under different circumstances and with full knowledge of the facts. The cause must be remanded that it may be heard upon legitimate evidence. The letters were not admissible. The testimony as to Nathan’s statement six months before his death was not — 378 — admissible. She was not called upon to speak.at the interview between the orator and her husband, and if she said nothing her silence should not be construed against her, nor inference drawn from it. If she did speak, what she did say, or omitted to say in connection with what she said, may properly be considered. Decree reversed and cause remanded for further ‡1'0-■ceedings.