Weir v. Baker

Grason, J., delivered the opinion of the Court. Adam Weir and David Weir held two judgments entered against Chester G. Baker in the Circuit Court for Frederick County. They issued execution on each judgment and Guy Anders, the sheriff of Frederick County, on August 26, 1941, levied upon -certain-property said to be “the lands and tenements, goods and chattels, rights and credits of Chester G. Baker,” the return of which was duly made and schedule of the property levied upon filed by the sheriff on September 3, 1941. On the same day there was instituted in said court by Chester G. Baker and Mae K. Baker, his wife, tenants by the entireties, trading as Baker Coal Company, a suit against Adam Weir, David Weir and Guy Anders, sheriff, Chester G. Baker, individually, in which Baker and his wife claimed that the property levied upon by the sheriff and contained in the schedule duly returned by him was held by them as tenants by the entirety and was not the individual property of Chester G. Baker.

On the 26th day of March, 1942, suggestion was made by plaintiff’s attorneys of the death of Chester G. Baker, No petition was filed by plaintiff or defendants asking that the administrator or executor (if there was such representative) of Chester G. Baker he made a party to the case. The case proceeded in the name of his surviving wife, Mae K. Baker, as plaintiff, and the Weirs and sheriff as defendants; was tried before the court without the aid of a jury and a verdict was' returned for the surviving claimant for the property claimed and one cent damages and costs. Thereafter judgment was ²⁵¹ entered on the verdict and from the judgment so entered an appeal was taken to this court. Two questions are presented on this record: “a” was Mae K. Baker a competent witness, and “b” whether the facts in the case support the finding of the court below.

It is contended that Mrs. Baker was barred from testifying by Section 3 of Article 35 of the Annotated Code of Maryland, 1939. This section is well known to the profession and has been dealt with by this court in a number of cases. It in terms provides: “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 * * * no party to the cause 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.” On the face of this record the personal representative of Chester G. Baker is not a party. In considering the propriety of the court’s action in permitting Mrs. Baker to testify, the facts and circumstances of the case must, of course, be given consideration.

It would appear to be unjust, in a case where a husband attempted to use property held by himself and his wife as tenants by the entireties (without the knowledge of the wife), to prevent her from giving the court the full history of such holding. To do otherwise would permit-a husband, without the authority of his wife, to destroy with impunity their title by the entireties. Such a conclusion could only be justified by a harsh rule of law that would permit the court no other alternative. It seems to us that it would be extending Section 3 of Article 25 quite unduly to hold that Mrs.