Young v. Gilman

Bellows, J. The suit was in favor of an administrator of an estate in which the husband of' the witness was interested as heir, it appearing also that there were no creditors. In case of a recovery, then, the husband would be entitled to a portion of the fruits of the judgment ; he was, therefore, directly interested, for by that judgment he would be concluded. Waiving, then, the question whether he should be regarded as a party, one inquiry is whether the wife is a competent witness for or against the husband, where his interest is directly involved in the suit, and would be concluded by the judgment, but where he is nota party. It must now be considered as well settled in New Hampshire, that the exclusion of the husband and wife as witnesses for or against each other, is founded as well upon reasons of public policy to preserve the sacredness of the marriage relation, as upon the identity of interests j and therefore that the removal by statute of the disqualification arising from interest, does not render competent the husband and wife. Kelley v. Proctor, 41 N. H. 139; Breed v. Gove, 41 N. H. 452; Smith v. Boston & Maine Railroad, 44 N. H. 325. In all these cases, the husband was party to the suit. In Breed v. Gove, the wife living apart from the husband, was offered as a witness against him, to prove the delivery of necessaries to her while so living apart. In the others, she was offered as a witness in his favor. In Smith v. The Boston & Maine Railroad, the suit was by the husband and wife for the loss of goods of the wife’s before the marriage, and she was called to prove the loss. In all the cases she was held to be incompetent. It is clear, therefore, that where the husband or wife is party to the suit, the other is not a competent witness, on grounds of public policy. Is the principle any the less applicable where the husband is not strictly a party to the suit, although his interest will be determined by it? Mr. Greenleaf, in his work on Evidence, sec. 335, lays it down that the principle of the rule requires its application to all cases in which the interests of the other party are involved, and would be concluded by any verdict therein, though the husband or wife be not a party. The same doctrine is laid down by Mr. Starkie in his work on Evidence, part 4, p. 708, and cases cited, although it is said that the interest must be vested and certain; but it is held that if the husband would be disqualified by reason of interest, the wife would be also; citing Tiley v. Cowling, 1 Ld. Raym. 744, which is in point. So is 1 Phillips Evi. 64; and the same principle is recognized in Leggett & al. v. Boyd, 3 Wend. 376, where it was decided that the wife of the special bail was an incompetent withess for the defendant in the original suit. [487] These principles so laid down in the elementary books are well sustained by the authorities ; and it is equally clear that they are not based upon the identity of interest alone, but upon reasons of public policy as well. In addition to the cases cited from our own reports to this point, are the authorities which show that the competency of the wife is not restored by the termination of her interest , as, for instance, the termination of the marriage relation by death of the husband, or by divorce, leaving the wife no interest in the estate. 1 Greenl. Evi. sec. 337, where it is said that the great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife. In Stein v. Bowman, 13 Peters U. S. Rep. 209, it was held that a wife, after her husband’s death, could not be allowed to prove that her husband had confessed to her that he had committed perjury in a deposition read in the cause, although the husband was not a party or interested in the cause. A similar doctrine was applied where the wife had been divorced by act of Parliament. Monroe v. Twisleton, Peake’s Evi. App. 87; recognized in Aveson v. Ld. Kinniard, 6 East. 192 193. So, in Doker v. Hasler, Ryan & Moody 198, it was held that a widow cannot be asked to disclose conversations between her and her husband, because of the violation of conjugal confidence. So is Starkie’s Evi. part 4, p. 711, andcases cited. In O'Connor v. Marjoribanks, 4 M. & G. 435, it was held, that, in trover by the personal representatives of the deceased, his widow is not admissible to prove that she pledged the goods sued for to the defendant with her husband’s authority ; and this is put upon the ground of public policy, and it fully recognizes the doctrine of Monroe v. Twisleton, and the court hold that the disqualification is general, and not limited to confidential communications. See, also, 2 Kent’s Com. *179, and notes and cases cited. So it is held, that, in a suit by the trustees touching her separate property, the husband could not be a witness for the trustees, although he had no interest in the subject. Burrell v. Bell, 3 Sandf. Ch. Rep. 15; Hasbrouck v. Vandervoost, 4 Sandf. 596, and 5 Seld. 153. In New Hampshire, it has been held, that, after the husband’s death, if the wife have no interest in the suit, and the facts to which she is called to testify, did not come to her through any confidential communications of the husband, she may be a witness. Jackson & al. v. Barron, 37 N. H. 494. So in Pike v. Hayes, 14 N. H. 22, it is suggested by Gilchrist, J., that there is no reason why the wife, after the death of the husband, should not state facts which came to her knowledge from other sources, and not by reason of her situation as wife. From these cases, it is fairly to be implied, even after the marriage relation is terminated, that the wife cannot disclose information which as a wife she had obtained during the marriage. This review of the authorities shows that at common law the disability of the husband and wife to testify against each other still remains, although the disqualification arising from interest be removed, as by a divorce, or by death ; and it, therefore, would seem to follow logically [488] that the removal of this disqualification by statute, as has been done here, would not make them competent witnesses. Upon these views, we think the wife was not a competent witness, and there must be A. neio trial.