Rothschild v. Hatch

Campbell, J., delivered the opinion of the court. It was not error to refuse to permit the introduction of evidence of the alleged will of Mrs. Griffith, made in 1843, because it was admitted it was never probated, and there was nothing to show that it had been regarded and acted on as [559] conferring any right. The proposed evidence to show a marriage settlement between Griffith and wife was properly excluded. It was mere hearsay, and clearly incompetent. It would have amounted to nothing, if it had been admitted. B. L. Hatch was a competent witness. He would have been such at common law. He had no interest in the event of the suit. A direct, certain and fixed interest in the event of the suit excluded a witness at common law. But one neither a party to the record nor interested in the event' of the suit was not disqualified on the score of interest. That a party had been thus interested did not disqualify him as a witness, if at the time he was called to testify his interest had been removed by a release or otherwise. The theory was that one swayed by interest could not safely be admitted to testify in support of his interest; but if he had no interest in the event of the suit, and could not gain by the result, he might be admitted as a witness. A party might testify where his interest was equally balanced, or against his own interest. Our statute sweeps away all disqualification on the ground of interest, but prohibits any one from testifying as a witness to establish Ms own claim against the estate of a deceased person, which originated in the lifetime of such person. The claim which one cannot establish by his own testimony as a witness is Ms own. If it is another’s, it is not “ his own.” Although it was his, if it has ceased to be his, it cannot with propriety be called Ms own claim, when he testifies as a witness to establish it. The question of the competency of a witness relates to the time when he testifies as a witness. It surely could not have been the purpose of law-makers, who were narrowing the grounds of the exclusion of witnesses as existing at common law, to establish a ground of exclusion which did not exist at common law. The prohibition against testifying to establish one’s own claim against the estate of a deceased person is an exception t» the universality of competency on the ground of interest, and it will not do to widen the exception so as to make it broader than the rule of exclusion at common law, as the language of the statute does not require or admit of it. The reason the statute prohibits any person from pi’oving [560] his own claim against the estate of a deceased person is the same which made the common-law rule of exclusion on the ground of interest, and the same reason which caused the removal of interest to render one competent as a witness applies under the statute to one who has no claim against the estate of a deceased person, but is called to testify as a witness to establish not his own claim, but another’s. Divested of any interest, he is supposed to be freed from any motive to swear falsely to support the claim of another, and is competent as a witness to establish it. We disapprove of Reinhardt v. Evans, 48 Miss. 230, and overrule it. • ' A. L. Hatch, one of the plaintiffs below, was not' a competent witness, because he was introduced to establish his own claim to property left by a deceased person, by virtue of admissions by him in his lifetime of a permissive possession of the land, and a holding for the plaintiffs. The claim of the plaintiffs below is to recover the land by virtue of a title by descent to them from Mrs. Griffith. Their title is indisputable. The only question is, whether by reason of lapse of time they have. not lost the right to assert it. It is asserted against the heirs of a deceased person, who died in possession of it. Prima facie it vested in his heirs. Their prima facie right is sought to be defeated by evidence that their ancestor did not hold the land adversely, but in subordination to the title of the plaintiffs. Undoubtedly, this land, for the purpose of determining the competency of the plaintiffs as witnesses, must be assumed to be the estate of a deceased person, the ancestor of the lessors of the defendant below, Rushing v. Rushing, 52 Miss. 329 ; and A. L. Hatch, in testifying as a witness, was seeking to establish his own claim against the estate of a déceased person. It is impossible to have an intelligent conception of the rule to guide in determining the competency of a witness under § 758 of the Code, without a clear idea of the meaning of the terms “ claim ” and “ estate of a deceased person,” as used in it. The decision in Lamar v. Williams, 39 Miss. 342, interpreted the term “ claim ” to include any demand or right asserted and relied on as against the estate of a deceased person. In Jacks v. Bridewell, 51 Miss. 881, we were called on by the facts of the [561] ease to determine the meaning of the expression “ estate of a deceased person,” and declared it to be “ all the property of every kind which one leaves at his death;” and, as a consequence, that the exclusion of parties as witnesses extends to every assertion of right by a party to any part of the estate left by a deceased person, and claimed by such party, or to be subject to his demand, by reason of an alleged transaction between such party'and the deceased person, whether the controversy is between him who would testify and the representatives of a deceased person, or others claiming property left by such deceased person, and to have succeeded to his rights. This case was decided after much deliberation. Our views are expressed in the opinion in very carefully chosen language, cautiously applied to the facts of the case. We have since considered the views therein set forth, and adhere to them. Tested by them, A. L. Hatch was not competent to testify. Notwithstanding the erroneous admission of the testimony of A. L. Hatch, the verdict should not be set aside ; for, excluding that evidence, the verdict is fully supported by the facts. It can hardly be doubted that the possession of Richard Griffith commenced in subordination to the title of the ancestor of the defendants in error, and there is no satisfactory evidence that it ever assumed an adversary character, while there is competent evidence of a recognition by Griffith of - his permissive holding. The law applicable to such a state of case is too well understood to be here expressed. Judgment affirmed.