Minnis v. Abrams

McAlister, J. This bill was filed to collect balance due on a promissory note and to enforce vendor’s lien for same on tract of land in Hamilton County. The principal controversy in the case was wheth [663] ■er the note was barred by the statute of limitations. The note was for $400. It was dated in 1886, and the bill was not filed until 1898. Complainant relied on a new promise made by a letter 'written to complainant by the maker of the note, in which he assured him the statute of limitations should never run against the debt and lien. The maker of the note died, and this bill was filed ■against his widow, heirs, and devisees to enforce the vendor’s lien and collect the note. An administrator ad litem was appointed and made a party defendant to this bill. This was, therefore,a suit between the complainant and the administrator of the estate, and the statute forbidding either party to testify in respect of communications and transactions with the deceased would apply. The Court of Chancery Appeals excluded all testimony by the complainant as to communications and transactions with deceased, but held that it was competent for complainant, although a party to the case, to testify to the independent fact that he had this letter in his possession, and that it was in the handwriting of his uncle, the deceased maker of the note. The section of the code referred to is as follows, viz.: “In actions or proceedings by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements by the testator, intestate, or [664] ward, unless called to testify thereto- by the opposite party.” Shannon’s Code, § 5598. The policy of the statute is to provide that when one of the parties to a litigated transaction is silenced by death the other shall be silenced by law. Wharton on Evidence, Vol. 1, sec. 466. It will be observed that the statute simply excludes proof of transaction with or statements by the deceased, but does not make the surviving party incompetent as to other matters. We do 2101 think proof by the surviving party that he • had a letter in his possession, and that the letter is in the handwriting of the deceased, is in contravention of the statute. These are independent facts, which we hold may be proven by either party to the suit. It was held by this Court in Montague v. Thompson, 7 Pick., 173, that preliminary to the introduction of other proof it was competent for the surviving party to state as independent facts that he at a particular time possessed a letter or written instrument, and that it had been unintentionally lost, but he was not competent to testify as to its contents. See Mason v. Spurlock, 4 Bax., 563. In the present case the Court of Chancery Appeals did not hold that complainant was competent to testify as to contents of the letter, but simply that -he had a letter in his possession, and that the letter was in the handwriting, of the deceased. The letter then spoke for itself. [665] There is nothing in the case of Scott v. Thornton, decided at Jackson, April term, 1900, that militates against this view. All that we held was that H. C. Scott, being a party in interest in the record, was disqualified to testify about the transaction in a suit against his deceased brother’s estate. It is true the question in that case was in respect of the admissibility of a letter, but complainant was not offered as a witness to testify to the handwriting of deceased. Affirmed.