Smith v. Humphreys

Boyd, J., delivered the opinion of the Court. Mrs. Eliza A. Bowen married Edward S. Humphreys and died in 1896 leaving her husband and Mrs. Smith, one of the appellants, who was her only heir at law and next of kin, surviving her. Mr. Humphreys qualified as administrator of her estate and received into his possession two certificates of Baltimore City stock, each for the sum of three thousand dollars, together with some other property for which he was charged in his accbunt $623.05. By that account, which was settled August 10th, 1897, there was a balance shown to be due the estate of $6,088.79, after deducting funeral expenses, commissions, costs, etc. On the 12th day of July, 1898, he settled another account in the Orphans’ Court, in which he was charged with the above balance and that sum, less fees to the Register of Wills, was credited as follows: “For amount paid Virginia D. Smith, the .only surviving child of Eliza A. Humphreys, as per release filed and recorded July 12th, 1898, $6,086.29.” The release was executed by the appellants, was acknowledged before a Justice of the Peace and recites that they had received of Edward S. Humphreys, adminis ²⁸⁷ trator, the above sum of $6,086.29, in which said Humphreys “has by virtue of law a life estate, and which said life estate the said Virginia D. Smith has this day purchased of the said Edward Humphreys, at and for the sum of three thousand and forty-four and thirty-nine one-hundred dollars.” Prior to that time, on September 28th, 1897, the Orphans’ Court had authorized and directed the administrator to transfer to himself individually, one of the certificates of Baltimore City stock for $3,000 and the other, for a like sum, to Mrs. Smith, which was done.

In February, 1904, Mr. Humphreys died in the city of Baltimore, and on the nth of January, 1905, this bill was filed by Mr. and Mrs. Smith against Joshua Humphreys, individually, and as administrator of Edward S. Humphreys, Mrs. Dove, a sister, and M. F. Humphreys, a brother of Edward S. It alleges among other things, “That in order to facilitate the settlement of the estate of her mother, as your oratrix was informed was right and proper by the said Edward S. Humphreys, and with the distinct understanding and agreement with the said Edward S. Humphreys that what he received in the way of personalty from her mother’s estate was to be enjoyed by him during his lifetime, and that at his death the same was to be returned to her.” She and her husband executed the release. It further alleges that neither of them read the release, or had it read to them, having full confidence in and trusting Edward S. Humphreys implicitly, and supposing that it was as represented, and “otherwise she and her husband would not have signed the said paper and it was signed by mistake. and under misapprehension of its true meaning and import.” It is also alleged in the bill that many of the papers and the trunks of Edward S. Humphreys were destroyed by the fire in Baltimore in February, 1904, and that Mrs. Smith had every reason to believe that if such calamity had not occurred “some memoranda or paper would have been among his effects returning to her the property so belonging to her and so agreed to be returned,” but in the absence of it, the adminis ²⁸⁸ trator took possession of all his effects, including the certificate of Baltimore City stock, and distributed the téstate after deducting expenses, etc., to the next of kin of Edward S. Humphreys—the certificate of stock' being valued in the account at $3,577.50. The prayers of the bill are: (a) “That the said agreement may be specifically performed and enforced,” and that the administrator may be required to turn over to Mrs. Smith any portion of the estate he has in hand, or which has been illegally paid away, to the value of the Baltimore City stock, and also the further sum of $86.29, received by said Edward S. Humphreys from the estate of his wife; (b) That the three next of kin may be required to turn over to her the portion of the personal estate of Edward S. Humphreys received by them to the amount of $3,663.79; (¿) That said sum be decreéd to be a lien or charge upon all the estate and property of Edward S., passing to the three defendants; (d) That the release be cancelled and set aside; (e) That the defendants be restrained from disposing of any property, or estate received by them from the estate of Edward S., and (/) For general relief. Answers, were filed by the defendants, testimony taken, and after héaring, the bill of complaint was dismissed by a decree of the lower court.

From that decree this appeal was taken. 1. Exceptions were filed to the testimony of Mrs. Smith on the ground that she was an incompetent witness, and also to certain specified, questions and answers for other reasons. These and other exceptions do not appear to have been acted upon by the learned Judge below, but it is clear that Mrs. Smith was not a competent witness as to the execution of this . release, or the alleged agreement made with Edward S. Humphreys. The statute in-force when this bill was filed (1904, ch. 661, now sec. 3 of Art. 35 of the Code), provides that “In actions, or proceedings by or against executors, administrators, heirs, devisees, legatees, or distributees of a decedent as such, in which judgments or decrees may be rendered for or against them, and in proceedings by or against persons incompetent to testify, by reason of mental disability, no party to the cause ²⁸⁹ shall be allowed to testify as to any transaction had with, or statement made by the testator, intestate, ancestor, or party so incompetent to testify, either personally or through an agent since dead, lunatic or insane, unless called to testify by the opposite party,” etc. As this bill seeks to have a decree rendered against the administrator and the distributees of Edward S. Humphreys, the statute in terms prohibits the plaintiffs from testifying as to any transaction had with, or statement made by the deceased, and it is clear that Mrs. Smith was not competent to testify as to the release, or any promise or statement by Mr. Humphreys in reference to it.

The present statute, however, does not make parties to a cause incompetent to testify as to all matters, but it expressly limits their incompetency, as above stated. Under the Code of 1888 a party to the suit was incompetent to testify when an original party to a contract or cause of action was dead or insane, and when an executor or administrator was a party to a suit, excepting as therein provided for. That was materially changed by the Act of 1902, ch. 495, and the only changes made by the Act of 1904 in the Act of 1902 were inserting after “administrators,” “heirs, devisees, legatees or distributees of a decedent as such,” and adding the word “ancestor” after “intestate.” The appellees are therefore in error when they say in their brief that the Act of 1904 restored the provisions omitted from the Act of 1902, and as they excepted to “all the testimony” of Mrs. Smith “on the ground of her incompetency to testify as a witness in this case,” such exception conld not be sustained, if she testified to anything that the statute does not prohibit, because it is too general. Under such an exception the Court is not required, and it cannot be expected, to go through the testimony and pick out such questions as are objectionable because the witness is incompetent to speak of the subject referred to.

If a witness is incompetent to testify at all, then an exception to the whole testimony of such witness on the ground of his incompetency should be sustained, as was done in Johnson v. Heald, 3 3 Md. 352 , but that does not apply when the witness] as in this case, ²⁹⁰ was competent for some purposes. In Dilley v. Love, 61 Md. 607 , it was held that although the witness was incompetent to testify at all, yet inasmuch as the exceptions were confined to certain questions and answers, those not excepted to were to be taken as evidence in the case. The Court said it was competent for the party filing the exceptions “to waive the statutory exclusion pro tanto, and confine his exceptions to such portions of the testimony as make against him, or as he may deem objectionable.” Mrs. Smith was clearly competent' to testify as to her mother’s death, what children she left, her own age, etc., and we are of the opinion that the defendants should have excepted to designated questions and answers,, on the ground of the incompetency of the witness, if they desired the exceptions to be passed on by the Court below, or by this Court, and not having done, so they cannot be excluded under that general exception to her incompetency as a. witness. There were some special exceptions filed to certain questions and'answers for reasons assigned, but we do not deem it necessary to pass on them, as it would unnecessarily prolong this opinion, and moreover we are satisfied that the plaintiffs are not entitled to the relief sought, if all the evidence excepted to be considered.

We have deemed it proper to refer