Stillwell v. Patton
| Citation | 18 S.W. 1075,108 Mo. 352 |
| Parties | Stillwell, Administrator, v. Patton, Administrator, Appellant |
| Decision Date | 02 February 1892 |
| Court | United States State Supreme Court of Missouri |
Appeal from Pike Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed.
Harrison & Mahan for appellant.
(1) The court committed error in allowing the wife of William Hubbard to testify against the objection of appellant as shown by the abstract, pages 10, 11, 12. This not one of the specified cases in which a wife may testify as laid down in section 4014, Revised Statutes, 1879, and that statute being in derogation of common law is to be strictly construed. Holman v. Bachus, 73 Mo. 49; Brismade v Groll, 14 Mo.App. 444; Willis v. Gammill, 67 Mo. 730; Moore v. Moore, 51 Mo. 118; Moore v Wingate, 53 Mo. 408; Stein v. Weidman Adm'r, 20 Mo. 17; Scroggin v. Holland, 16 Mo. 419; 1 Greenl. Ev., secs. 336, 337. (2) After death of the husband, the widow can only testify to facts coming to her knowledge from other sources, and not by virtue of her marital relations or situation as a wife, when she is a witness in behalf of the estate of her deceased husband. The court committed error in allowing the widow of William Hubbard to testify against the interest and estate of her deceased husband. Cannon v. Moore, 17 Mo.App. 100; Sherwood v. Hill, 25 Mo. 391; Coffin v. Jones, 13 Pick. 443; Scroggin v. Holland, 16 Mo. 419; Funk v. Dillon, 21 Mo. 295; Hoffman v. Parry, 23 Mo.App. 30; Spradling v. Conway, 51 Mo. 54; Wheeler v. Wilson Co., 75 Mo. 458. (3) The note is suspicious; alterations and erasures are apparent on its face. Amos J. Stillwell held it as an indorsee. The law presumes the alterations to have been made after indorsement and delivery to Stillwell. It devolved upon the party holding and offering the note to show its condition. At least to show it had been altered before they received it. This the plaintiff did not do, and the court committed error in permitting the note to be read to the jury against appellant's objection. Tiedeman on Commercial Paper, sec. 393, p. 664; 2 Daniels on Neg. Inst., sec. 1417, p. 429; Smith v. Ferry, 69 Mo. 142; 1 Greenl. on Ev., sec. 564, p. 603; Simpson v. Stackhouse, 9 Barr. 186; White v. Haas, 32 Ala. 430; Fontaine v. Gunter, 31 Ala. 258; Wilde v. Armsby, 6 Cush. 314; Runnion v. Crane, 4 Blackf. 466; Kennedy v. Bank, 18 Pa. St. 347; Heffner v. Wenrick, 32 Pa. St. 423; Wheat v. Arnold, 36 Ga. 430; Willet v. Shepard, 34 Mich. 106; Chism v. Towner, 27 Ark. 109; Elbert v. McClelland, 8 Bush, 577; Hill v. Barnes, 11 N.H. 395. (4) The time when, and the person by whom, and the intent with which, the alteration was made are matters of fact to be found by the jury under the evidence. The court, having refused to require the holder to explain the note, committed manifest error in excluding appellant's evidence offered to prove the suspicious and spurious condition of the note. Holton v. Kemp, 81 Mo. 666; Paramore v. Lindsey, 63 Mo. 63; Lubbering v. Kohllecher, 22 Mo. 596; Mathews v. Coalter, 9 Mo. 71; Bank v. Murdock, 62 Mo. 76; 1 Thompson on Trials, sec. 1399; 1 Greenl. Ev., sec. 564. (5) Appellant had the right to show that the heirs of the Hubbard estate who were testifying for respondent had conveyed to Amos J. Stillwell a part of their interest in the estate, and were, therefore, interested in the result. It directly affected their credibility. The court committed error in sustaining an objection to appellant's question in that behalf. Waddingham v. Hughlett, 92 Mo. 534; Muller v. Hospital Ass'n, 73 Mo. 243.
J. L. Robards for respondent.
(1) The widow (Mrs. Elizabeth Hubbard) of William Hubbard, deceased, was a competent witness, and her testimony admissible; the objections made by defendant were properly overruled. Under the commonlaw rule, the widow is "competent to prove facts coming to her knowledge from other sources, and not by virtue of her marital relation, or situation as wife, notwithstanding they related to the transaction of her husband." 1 Greenl. Ev., sec. 338. "This rule is not abrogated by any statute." Cannon v. Moore, 17 Mo.App. 92. (2) The widow did not testify to anything that transpired during coverture with William Hubbard; the seal placed by the law upon the privacy of their joint wedded life was unbroken. The widow was the wife of another man, and William Hubbard, was the husband of another woman when she acquired the knowledge of his signature. Against such testimony there is no law. The widow was like any other witness, her testimony did not affect the conjugal state. She was a proper and competent witness. Scroggin v. Holland, 16 Mo. 419; Steinman v. Weidman's Adm'r, 20 Mo. 17; Sherwood's Adm'r v. Hill, 25 Mo. 391; 1 Greenl. Ev., secs. 244, 245, 338. (3) The court did right in permitting the note, after proof of its due execution, and after inspection, to be read to the jury. First. William Hubbard had admitted to his daughter, Mrs. Bridewell, and to Charles L. Hixon, that he had signed it. Second. 2 Parson's Notes & Bills [1 Ed.] p. 477. The proof from other witnesses was overwhelming, and authorized its submission on this issue. Fornnoy v. Warden, 17 Mo. 435; Merrick v. Phillips, 58 Mo. 436. The court had the right after scrutiny and inspection to determine whether the note was suspicious upon its face, or that alterations and erasures were apparent so as to require explanation of the plaintiff, and the court did determine after careful examination that the note was neither suspicious nor evidenced alteration or erasure. Butterworth v. Ratcliff, 7 Mo. 550; Paramore v. Lindsey, 63 Mo. 63; Holton v. Kemp, 81 Mo. 661; 1 Greenl. Ev., sec. 564.
In May, 1886, Richard Stillwell, as administrator of the estate of Amos Stillwell, presented to the probate court of Marion county the following note, for allowance against the estate of William Hubbard:
The note had been indorsed by Mary Adeline Hubbard, the payee, and her husband, George Hubbard, and delivered to Amos Stillwell as security for a note amounting to $ 1,200, held by Stillwell against George Hubbard. At the time the note was presented for allowance, there was a credit indorsed thereon, under date of November 10, 1882, for four notes, two for $ 200 each, and two for $ 250 each.
The defenses interposed are that William Hubbard did not sign the note, that it is a forgery; and that the note is worthless in the hands of Stillwell because of material alterations. There was one trial in the probate court and two in the circuit court, all resulting in verdicts for plaintiff.
From the evidence it appears George Hubbard, the husband of the payee of the note, was a son of William Hubbard, the alleged maker. The father and son had some dealings which it is claimed led to the execution of this note, but the nature and extent of these dealings are not disclosed by the evidence as it is recited in the abstracts. Nor does it appear at what date the note was assigned and delivered to Stillwell. William Hubbard saw the note while it was in the hands of Stillwell, and there is much evidence to the effect that he said he signed it, and again that he did not sign it. To some persons he said he did not deny the signature, but if he signed the note the fact had slipped his memory, and that he did not owe George the amount specified in it. The controversy resulted in a criminal prosecution against George, or at least an investigation by the grand jury. There was much evidence on both sides as to whether William Hubbard signed the note, and that particular issue was submitted to the jury on instructions about which there is and can be no complaint. The complaints are that the court erred in admitting evidence produced by the plaintiff, in excluding evidence offered by defendant, and in giving and refusing instructions on the subject of material alteration.
1. The note, it will be seen, bears date December 8, 1881. William Hubbard married his second wife in 1883, and died in 1884. This second wife was the widow of Hubner. She was called as a witness by the plaintiff and testified that she and Hubner, her first husband, had business transactions with William Hubbard, and in this way she saw Hubbard sign papers and became acquainted with his signature before she married him. Being shown the note in question she said the signature of William Hubbard thereto was genuine. To all this evidence defendant objected, because she could not testify against the interest of her husband's estate, and because incompetent by reason of her marriage with Hubbard, which objections were overruled.
At common law husband and wife could not testify for or against each other, save in a few excepted cases. This principle of exclusion was founded partly on identity of interest in the event of the suit and partly on grounds of public policy. By our statute interest in the suit or subject of the litigation is no longer a disqualification. The statute specifies cases in which a married woman may testify in a proceeding prosecuted by or against her husband, but concludes with the provision, that she may not, while the marriage relation exists or thereafter, testify to admissions or conversations of her husband made to her or third parties. The object of this provision was to preserve the common-law rule as to admissions and conversations of the husband. It was not designed to go further in the way of exclusion than did the common law. Speaking of this matter Greenleaf says the rule is analogous to...
To continue reading
Request your trial