Robertson v. Mowell

• Citation: 8 A. 273,66 Md. 530
• Parties: ROBERTSON v. MOWELL, EX'R, ETC.
• Decision Date: 04 February 1887
• Court: Court of Appeals of Maryland

8 A. 273

66 Md. 530

ROBERTSON v. MOWELL, EX'R, ETC.

Court of Appeals of Maryland

February 4, 1887

Appeal from circuit court, Baltimore county. Equity.

Alex. H. Robertson and Wm. L. Marbury, for appellant.

Charles E. Hill and Wm. S. Keech, for appellee.

MILLER J.

We do not agree with the learned judge of the court below in holding that Mrs. Hawkins is not a competent 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 made the parties litigant competent and compellable to give evidence in all save a few well-defined cases. One of these exemptions is that, "where an original party to a contract or cause of action is dead, or shown to be lunatic or insane, or where an executor or an administrator is a party to the suit, action, or other proceeding, either party may be called as a witness by his opponent, but shall not be permitted 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 v. 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 v. Davis, 47 Mo. 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 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 v. Frazier, 65 Md. 2, 4 A. 133, 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 excluded, to preserve mutuality."

The other terms, "or where 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 manifest 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, c. 109. By these amendments, commencing with the act of 1868, c. 116, the exception is itself modified, so that as it now stands, under the act of 1876, c. 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 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 exclude the other party to such contract from testifying on his own 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 ever been decided that the presence of any personal representative as a party would work the disqualification contended for in this case. In the recent cases of Dilley v. Love, 61 Md. 603, and Owens v. Crow, 62 Md. 491, the executor and administrator of deceased parties whose estates were sought to be 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 Davis, and the witness Mrs. Hawkins, who was the sister of Mrs. Davis, was joined with the trustee as complainant 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 twentieth 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 seventeenth of January 1881, the sum of $14,650, in part payment of this mortgage; and then charges (1) that at the time of this payment it was...