Johnson v. Heald

Millee, J., delivered the opinion of the Court. When the Legislature, by the Act of 1864, chapter 109, removed the incompetency of witnesses arising from interest and crime, and declared that the parties litigant and all persons in whose behalf any suit, action or other proceeding, may be brought or defended, themselves and their wives and husbands, shall be competent and compellable to give evidence in the same manner as other witnesses, they made certain exceptions which in our judgment clearly manifest the purpose of the law makers and the spirit and intent of the law. It appears to us to have been the design of this legislation, in admitting parties to suits to testify at their own instance, to provide that' they should do so on terms of perfect equality as to knowledge or means of knowledge of the subject-matter of controversy about which they were to speak. It would have been flagrantly unjust to permit a party whose property was at stake, subjected to all that influence of interest which the infirmity of human nature and the experience of ages had demonstrated to be so powerful as in most cases to shake integrity, and induce a departure from truth, and on which the rule of exclusion in all cases was founded, to go upon the witness stand and tell his story of the transaction and give his version of the contract against one whose lips were sealed by death or insanity. This obvious rule of justice, mutuality and fairness was not overlooked by the Legislature, and hence by the 2d section of that Act it was provided that: “ When an original party to a contract or cause of action is dead or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action or other pro — 369 — ceeding, the other party may be called as a witness by his opponent but shall not be permitted to testify on his own offer or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed unless a nominal party merely.” The spirit of this provision and the intent of its framers are sufficiently apparent, but it was in some respects defective and unfortunately worded. It had received no construction by the Appellate Court prior to the passage of the amendatory Act of 1868, chapter 116, but in some, perhaps in all the circuits, the practice had obtained, sanctioned apparently by the language of this section, of allowing an executor or administrator in all cases where he was a party to the suit, no matter wdien the cause of action arose or what was the subject of controversy, to become a witness on his own offer because the prohibition to that extent was against the other party only, and not to allow the latter to testify except upon the call of liis adversary. In other words and to illustrate the effect of this construction, if an executor was sued on a cause of action against his testator, he could, on his own offer, testify to any conversations he may have held with the plaintiff or to any admissions made by the latter, as, for instance, he might testify that the plaintiff told him the debt was paid, and yet the latter could not himself be a witness at his own instance either to contradict or explain such conversations or statements; so when suing for a debt due his testator, the executor could testify as to an admission by the defendant that would remove the bar of the Statute of Limitations, whilst the latter could not contradict or explain such statement. Again an executor might be plaintiff or defendant in a suit where the cause of action arose since the death of the testator on some contract or transaction connected with the estate between him and the other party, and one would be allowed to testify on his own offer and the other not. In our opinion it was the main purpose of the law of 1868, chapter 116, to meet such cases as these, and preserve the rule of mutuality and fairness to which we have adverted. It re — 370 — peals the 2cl section of the Act of 1864, and enacts in lien thereof that: “When an original party to a contract or cause of action is dead or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action or other proceeding, either party may be called as a witness by his opponent, but shall not be permitted to testify on his own offer or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed unless a nominal party merely; provided, that when an executor or administrator, guardian or committee of a lunatic or insane person is a party to the suit, action or other proceeding, when the cause of action has arisen on a contract made with such executor, administrator, guardian or committee, or out of transactions between such executor, administrator, guardian or committee, and the other party, or when the executor, administrator, guardian or committee testifies to any conversations had with the other party, either party may be examined as a witness, as provided for in the other sections of this article.” By that part of this law which precedes the proviso, an important change is made, or, at least, a grave doubt upon its construction as it stood in the second section of the Act of 1864, is removed, for it is plainly said that, in all eases where the cause of action antedates the death or lunacy, or where an executor or administrator is a party to the suit, neither party shall be admitted to testify on his own offer, but only on the call of his adversary. This is made a general and just rule, and thus the injustice of allowing the executor or administrator .to testify in every case on his own offer, whilst the other party was excluded from so doing, resulting from the practice under the previous Act, Avas obviated. Then comes the proviso, which • clearly creates exceptions to this general rule, and in certain specified cases, allows either party to be a witness on his own offer in the same manner as in cases where the cause of action is between living parties. The first exception is where the cause of action follows the — 371 — death or lunacy and arises on some contract or out of some transaction between the executor, administrator, guardian or committee and the other party. In such cases, it is very clear either party can testify on his own offer, and here the rule of mutuality and fairness is strictly preserved, because both parties have equal knowledge or means of knowledge of the subject about which they are to give testimony. Provision is next made for cases where conversations may have taken place between the executor, administrator, guardian or committee, and the other party in reference to the cause of action or controversy when it antedates the death or insanity. With respect to these conversations, though not so clearly expressed as in the other cases, yet by fair implication from the words used, either party is made competent to testify on his own offer. But to what extent? On one side there can be no doubt of the limit. It is these conversations alone that the executor can on his own offer speak of. In all justice and fairness the other side should be confined to the same subject matter also. To these alone as a subject matter of testimony this part of the proviso refers, and with these alone it professes to deal, and wo are of opinion the true construction of this statute, looking to the spirit and general intent of the whole law, and the objects it seeks to attain, require that both parties in such cases should be confined to the giving in evidence and the denial or explanation of the conversations that may have occurred between them. In other words the executor, administrator, guardian or committee, may on his own offer or on the call of his co-plaintiff or co-defendant go upon the stand and give in evidence adversely to his opponent any conversations he may have had with the latter, and if ho does so, then the other party, likewise on his own offer or the call of his co-plaintiff or co-defendant, may testify in respect to such conversations or admissions by giving such evidence as will fairly tend to contradict, explain or modify them, but beyond this he cannot go. This is our reading and construction of this part of the proviso. To give — 372 — it a broader scope and to allow the other party, where the executor testifies and can only testify to conversations, to become a witness at large for every purpose of the action, to give his story and version of the whole transaction between himself and the deceased, who cannot speak, would, in our judgment violate the rule of mutuality, work in many cases great wrong and injustice, and be inconsistent with the general tenor and intent of the whole legislation on this subject. It would give to the other party in such cases a greater advantage than the executor or administrator had under the previous law, and perpetuate one of the very mischiefs that latv allowed, and which the Act of 1868, was intended to cure. We cannot attribute to the Legislature such a purpose. The construction we have adopted is just and reasonable, and is but a legitimate application of the canon of interpretation sanctioned by the Court of Appeals in 4 G. & J., 152, where it is said: “ Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention which may be collected from the cause or necessity of making the Act, or from foreign circumstances, and when discovered ought to be followed although such construction may, seem to be contrary to the letter of the statute.” Under the construction we have thus placed upon this law, we are satisfied Mrs. Johnson was incompetent to speak of any of the matters about which she has testified. The executor had been examined under the Act of 1864, and in the course of his examination had given testimony as to conversations and interviews between himself and Mrs. Johnson, but to the latter no interrogatory was put relative to these conversations and no contradiction or explanation of them offered. She became a witness on her own offer and testified at- large to the whole cause, to her father’s mental condition and- capacity to make the gift, to the previous gift of the house and the furniture, to the writing on the envelope in which the bonds were placed, and then gave a detailed state — 373 — ment of all that occurred in reference to the secret gift of this large amount of bonds between herself and her deceased father, when no other human being was present. She 'was not cross-examined and her whole testimony is excepted to on the ground of her incompeloncy as a witness. In our opinion she was not competent to testify on any of these matters and the exception to her testimony should be sustained. This direct and positive proof of the gift out of the case, we cannot, after the most careful and patient examination of all the other testimony in the record, discover sufficient, reliable and satisfactory evidence to establish the fact of the gift, without which the case of the appellants has no foundation. (Decided 8th December, 1870.) In these views a majority of the Judges, constituting the Court that heard the cause, concur, and the result is that the decree appealed from must be affirmed. In disposing of the costs, we are of opinion that under all the circumstances of the case, all of them as well those in the Court below as in this Court, ought to be paid by the executor out of the estate, and will so provide in the decree of affirmance. Deoree affirmed. Brent and Grason, J., dissented.