Robertson v. Mowell

Miller, J., delivered the opinion of the Court. We do not agree with the learned Judge of the Court below in holding that Mrs. Hawkins is not a competent ⁵³² witness in this case, and in our opinion she is competent, whether she be regarded as a nominal or a necessary party to the suit. The Evidence Act has removed all disqualification founded upon interest, and mada the parties litigant cojnpetent and compellable to give evidence in all save a few well defined cases. One of these exceptions is that “ when an original party to a contract or cause of action is dead, or shown to he lunatic or insane, or when an executor or administrator is a party to the suit, action or other proceeding, either party maybe called as a witness by his opponent, but shall not be admitted 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.” This clause of the statute has been before us for construction in several cases.

In Wright vs. Gilbert, 51 Md., 157 , it was held that the terms “contract or cause of action” as here used, mean the contract or cause of action in issue and on trial, and that the exception excludes only an original party to such contract, who is also a party to the suit, from testifying where the other original party to the contract is dead or insane. The sole purpose of the exception, say the Court in quoting the Massachusetts cases upon a similar provision in the statute of that State, is to exclude a party to the record from testifying in his own favor when the other party to the contract or' cause of action in issue is incapable of testifying' against him. The Court also refers with approval to the case’of Looker vs. Davis, 47 Missouri, 140, where it was said that the object and purpose of the proviso undoubtedly was “ to put the two parties to a suit upon terms of substantial equality in regard to the opportunity of giving testimony. The proposition may be taken as a general one, therefore, that where parties have contracted with each other, each may be supposed to have an equal knowledge of the transaction, and both, if living and . sane, are allowed to ⁵³³ testify.

But if one is precluded by death or insanity, the other is not entitled to the undue advantage of being a witness in his own case. But the test of competency is the contract or cause of action in issue and on trial, and not the fact to which the party is called to testify.” So in the very recent case of Horner & Condon vs. Frazier, 65 Md., 1 , we have said, “the object of these Evidence Acts was to remove restrictions and not to impose them. ■ - Only such exceptions were made as seemed necessary to preserve mutuality, and to prevent undue advantage being given to a survivor in a contract where the other contractor was dead. . It is only where the suit is upon the cause of action to which one party is dead, that the other party is éxcluded to preserve mutuality.” The other terms “ or when an executor or administrator is a party to the suit, action or other proceeding,” do .not, in our opinion, mean that the mere fact that the personal representative of any deceased person is a party to the suit, makes every other party on both sides incompetent to testify on his own offer or upon the call of his co-plaintiff or co-defendant. If such a construction were to prevail it would render the Evidence Act of very little use in chancery suits, for in such cases the litigants are usually numerous, and it seldom happens, but that it becomes necessary to make the personal representatives of some one a party to the proceeding.

It has never been held that the mere presence of any personal representative as a party to the action, works the broad disqualification of all the other parties contended for by the appellees, nor do we think the Legislature ever so intended. The executor or administrator referred to is, in our judgment, the executor or administrator of a deceased party to the contract or cause of action in issue and on trial; and the exclusion only extends to the other party to such contract, and who is also a necessary, and not a mere nominal party to the suit. And this, as it seems to us, is made more mani ⁵³⁴ fest by the amendments which the Legislature has from time to time, made to this proviso or exception, as embodied in the original Act of 1864, ch. 109. By these-amendments commencing with the Act of 1868, ch. 116, the exception is itself modified so that as it now stands, under the Act of 1876, ch. 222, there follows immediately after the words “ unless a nominal party merely,” this provision, “except in case where the party to such suit, action or other proceeding, has died, or become lunatic or insane after having testified in his own behalf, then the opposite party shall be a competent witness on his own behalf in such case, notwithstanding the executor or administrator of such deceased person, or committee of such lunatic or insane person, has become a party to such suit, action, or other proceeding, but shall only testify as to matters upon which such deceased lunatic or insane person was examined and testified to; 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 as to any conversation had with the other party, either party may be examined as a witness as provided for in the other sections of this Article.” All these provisions point to the executor or administrator of an original party to the contract or cause of action in issue and on trial, and the Legislature seems to have been studious and prolix, in its specifications in order not to allow the exception to extend further than to ex-clude the other party to such contract from testifying on biis oion offer, or at the call of his co-suitor, when such executor or administrator is a, party to the suit, and the tenor of all the decisions upon the subject is to the same effect.

In none of them has it ⁵³⁵ ever been decided tliat the presence of any personal represeñtat-ive as a party would work the disqualification contended for in this case. In the recent cases of Dilley vs. Love, 61 Md., 603 , and Owens vs. Crow, 62 Md., 491 , the executor and administrator of deceased parties whose estates were sought to he charged, were parties to the suits, and what was said in those cases must be taken as referring to the facts- then before the Court, and they are entirely unlike those presented in this case. Here the bill was filed by a trustee appointed by the Court to carry out the trusts contained in the will of Mrs. Ella Y. Davis, and the witness, Mrs. Hawkins, who was the sister of Mrs. Davis, was joined with the trustee as complainaut on account of some real or supposed interest in the trust property derived under that will. These two sisters had an only surviving brother, Joseph W. Mowell, who was the owner of an estate called “Glencoe,” upon which he had given a mortgage to Mr. Abell for §24,150, •dated the 20th of October, 1876, and payable in five years.

The bill alleges that Mrs. Davis, at the request of her said brother, paid to Mr. Abell on the 17th of January, 1881, the sum of $14,650 in part payment of this mortgage, and then charges, 1st, that at the time of this payment it was understood and agreed between Mrs. Davis, and her brother, that the balance due on the mortgage should be paid by the former, and that the mortgage should be duly assigned to her; 2nd, that it was further agreed between the same parties that the aforesaid sum of $14,650 should be a charge upon the property embraced in the mortgage; and 3rd, that, said parties intended and agreed that this sum should be secured to Mrs. Davis by her brother, and that for the purpose of carrying out this agreement Mrs. Davis visited her brother at Glencoe soon after the 17th of January, 1881, but found him too sick to transact any business, and she herself soon thereafter became sick and •died on the 28th of February, 1881, leaving the will which ⁵³⁶ is exhibited with the bill. When the hill was filed the-parties mainly interested under this will were the five infant children of Mrs. Hawkins, George R. Mowell, a, nephew, and Mrs. Sarah Barnes, a niece of the testatrix. The other statements of the bill (about which there is no-dispute) are to the effect that the brother, Joseph W. Mow-ell, died on the 5th of December, 1881, leaving a will by which he devised all bis property, including the “Glencoe”' estate, to his wife Emma M. Mowell, with a request that-she should devise one-third of it to his sister, Mrs. Hawkins, one-third to his nephew, George R. Mowell. and the* other third between the children of Mrs. Hawkins and his-niece Mrs. Sarah Barnes; such division, however, to be conditional upon the demeanor of these parties towards his-, wife; that Emma M. Mowell died in June, 1885, leaving a. will, by which she devised the property in substantial compliance with her husband’s