Hoyt v. Davis

• Citation: 30 Mo.App. 309
• Parties: MARY F. HOYT, Respondent, v. WILLIAM DAVIS and J. T. HERRON, Executors, et al., Appellants.
• Decision Date: 10 April 1888
• Court: Court of Appeal of Missouri (US)

30 Mo.App. 309

MARY F. HOYT, Respondent, v. WILLIAM DAVIS and J. T. HERRON, Executors, et al., Appellants.

Court of Appeals of Missouri, St. Louis.

April 10, 1888

APPEAL from the Shelby Circuit Court, HON. THOMAS H. BACON, Judge.

Affirmed.

B. F DOBYNS and R. P. GILES, for the appellants: Moulton Hoyt deceased, the husband of the plaintiff, was one of the original parties to the cause of action in issue and on trial, and the plaintiff being the other party she was not a competent witness to testify on the trial of this cause. Rev Stat., sec. 4010; Meier v. Thieman, 90 Mo. 433; Chapman v. Dougherty, 87 Mo. 617; Ring v. Jamison, 66 Mo. 424; Angell v. Hester, 64 Mo. 142; Sitton v. Shipp, 65 Mo. 297; Bank v. Hunt, 25 Mo.App. 170; 1 Whart. on Evid. (1 Ed.) sec. 466. The executors of Mr. Hoyt being parties defendant, in this action, and the plaintiff being the other party, it was error to permit her to testify in her own favor, except as to such acts as have been done since the probate of the will. Rev. Stat., sec. 4010; Weiland v. Wayland, 64 Mo. 168; Kellog v. Malin, 62 Mo. 429; Poe v. Domic, 54 Mo. 119; Johnson v. Quarles, 46 Mo. 423; Stanton v. Ryan, 41 Mo. 510; Wade v. Hardy, 75 Mo. The error in this respect was not cured by the action of the court in sustaining objections to plaintiff testifying to any statements made by her husband. Being excluded from testifying to the statements of her husband, she should also have been excluded from testifying to any acts accompanying such statements, or to which such statements related. Holman v. Bachus, 73 Mo. 49; Moore v. Wingate, 53 Mo. 398; Waddle v. McWilliams, 21 Mo.App. 298. Nor was the error complained of cured by the action of the court in giving the declaration of law that the plaintiff's sworn rehearsal of the statements of her husband were not admissible in evidence and not to be considered.

W. O. L. JEWETT and W. M. BOULWARE, for the respondent: It is a matter of no significance that the act of the deceased is the subject-matter of controversy. Hence it is settled law that all parties are competent witnesses in a proceeding to contest the validity of the will. Garvin's Adm'rs v. Williams, 50 Mo. 212. Also that in a controversy concerning advancements, in a proceeding for distribution, all parties, including the widow, are competent witnesses. Spradling v. Conway, 51 Mo. 54. It need scarcely be observed that the competency of a widow is not more restricted than that of a married woman. On the contrary, while at common law a married woman could not testify at all in a case of her husband, neither for him nor against him, a widow could testify in behalf of or against his estate subject to the restriction concerning confidential communications. Scroggin v. Holland, 16 Mo. 419; Stein v. Weidman's Adm'r, 20 Mo. 17; Sherwood v. Hill, 25 Mo. 394.

OPINION

THOMPSON J.

Mrs. Hoyt filed her petition in the probate court of Shelbye county, claiming one-half of the personal estate of her deceased husband, Moulton Hoyt, under the provisions of section 2189, Revised Statutes. The only defence was, that she was barred of her right to this share in the personal estate of her husband under the provisions of section 2204, Revised Statutes, by reason of having voluntarily left her husband and continued with an adulterer. On appeal to the circuit court the cause was tried before the judge sitting as a jury, and there was a verdict and judgment for the defendants. From this judgment Mrs. Hoyt prosecuted a writ of error to this court, and such proceedings were had in this court, that the judgment was reversed and the cause remanded to the circuit court for further proceedings. In the opinion of this court (21 Mo.App. 235), it was held that the share in the personal estate of her deceased husband claimed by Mrs. Hoyt is " dower" within the meaning of section 2204, Revised Statutes, which bars jointure and dower in cases where the wife has voluntarily left her husband and continued with an adulterer. This court also held that section 2204, Revised Statutes, does not apply in a case where the wife, after her husband has deserted her and failed to provide for her and contracted a bigamous marriage with another woman, goes away from her former domicile and lives with an adulterer. After being remanded by this court, the cause was again tried in the circuit court by the judge sitting as a jury, and the trial resulted in a finding and judgment for the petitioner. The learned judge gave, on the merits of the controversy, a declaration of law which is not and could not be complained of. He also made a special finding of the facts, which, though not authorized by our procedure, may perhaps be looked to in connection with the declaration of law as indicating the grounds upon which he rested his judgment. But whether it may be looked to or not is not material. The substance of the finding was two fold: (1) That Mrs. Hoyt was abandoned and deserted by her husband, Moulton Hoyt, as above recited, he subsequently contracting a bigamous marriage with one Emily McLean; (2) that, although she had subsequently gone away from her father's house with one Davis and had remained away for a short time, it was not for the purpose of adultery and she had not in fact committed adultery. Whatever may be said as to the second of these two findings, which rested for its support upon the testimony of Mrs. Hoyt herself, it must be said that the first was supported by substantial evidence, and this, under our former decision, was sufficient to require the rendition of judgment in favor of Mrs. Hoyt. For the purpose of making clearer what we shall subsequently decide in this case, we may add that if the testimony of Mrs. Hoyt were entirely stricken out of the record, this finding would remain supported by substantial evidence.

The errors assigned on the record relate to the rulings of the court in admitting Mrs. Hoyt to testify as a witness at all, and also in allowing her to testify to certain statements made by her deceased husband in the nature of confidential communications.

I. The first ground on which the competency of Mrs. Hoyt as a witness is objected to is, that she is a party to the cause of action, and that one of the original parties thereto to-wit, her late husband, Moulton Hoyt, is dead; wherefore it is argued she is excluded by the terms of section 4010,...