Bean v. Bean

• Decision Date: 05 November 1902
• Citation: 71 N.H. 538,53 A. 907
• Parties: BEAN et al. v. BEAN et al.
• Court: New Hampshire Supreme Court

53 A. 907

71 N.H. 538

BEAN et al.

v. BEAN et al.

Supreme Court of New Hampshire. Hillsborough.

Nov. 5, 1902.

Exception from superior court; Peaslee, Judge.

Probate appeal by Electa C. Bean and another, executrices of John D. Bean, deceased, the appellees being Cotton W. Bean and another. Verdict for appellants. Appellees excepted. Verdict set aside.

The issue tried was whether John D. Bean in his lifetime gave to the appellants, his wife and daughter, certificates for $2,400 of the guaranty fund of the Guaranty Savings Bank of Manchester, 24 shares of the stock of the New Hampshire Fire Insurance Company, 16 shares of the stock of the New Hampshire Trust Company, 19 shares of the stock of the People's Fire Insurance Company, 10 shares of the stock of the Bank of New England, 5 shares of the stock of the Amoskeag National Bank, 2 deposit books of the Guaranty Savings Bank, and 1 deposit book of the Bank of New England, all of which stood in his name and unassigned at the time of his decease. Mr. Bean's family, for a period previous to his death, consisted of himself, his wife, his daughter, and her husband. He died August 17, 1890, leaving a large property in addition to that here in controversy. The wife was offered as a witness at the trial, and testified, subject to exception, that the above-named securities were in a private drawer in a bureau in her chamber the moment after Mr. Bean died. Both the wife and daughter testified fully as to what the securities were, and that they were inclosed in an unsealed envelope upon which was written, "The property of Electa C. Bean and Emma R. Mead." The wife was the only witness to her possession of the property the moment after Mr. Bean's death, but other witnesses testified that she had the possession of it a week or two subsequent to his decease, and gave a description of it. One witness testified to the written declaration upon the envelope, and that it was in Mr. Bean's handwriting. The envelope was not produced in evidence, having been destroyed. Mr. Bean was a business man of large experience. During the summer preceding his death he had been physically and mentally well. He kept his valuable papers in a safe at his house. The wife and daughter did not know how to open the safe, but the son-in-law did. August 11, 1890, Mr. Bean caused to be transferred to his wife 30 shares of the stock of the Concord & Montreal Railroad and August 13, 1890, 10 shares of the Pemigewasset Valley Railroad to his daughter, all standing in his name. These transfers were made upon the backs of the certificates, filled out and signed by Mr. Bean, and witnessed. The appellees moved for a nonsuit at the close of the appellants' evidence, and that a verdict be directed for them at the close of all the evidence. Both motions were denied, subject to exception.

Joseph W. Fellows and Burnham, Brown & Warren, for appellants.

Mitchell & Foster and Taggart, Turtle & Burroughs, for appellees.

BINGHAM, J. The appellants claim certain certificates of stock and savings-bank books as a gift from the testator. At the trial they offered themselves as witnesses to prove the gift, but were not allowed to testify in respect to facts occurring in the lifetime of the testator, unless they were by being permitted to testify that the unsealed envelope inclosing the securities was in the possession of the wife the moment after his decease; that it had upon it an inscription which read, "The property of Electa C. Bean and Emma R. Mead"; and that the securities were certificates of stock and savings-bank books, which they describe in detail. The inscription was in the handwriting of the testator.

It is contended by the appellees that the appellants were incompetent witnesses; that their testimony was offered to prove certain facts that occurred, if at all, in the lifetime of the testator, and tended directly, as well as inferentially, to prove such facts. They rely, in their objection to the testimony, upon section 16 of chapter 264 of the Public Statutes, which reads as follows: "When one party to a cause is an executor, administrator, or the guardian of an insane person, neither party shall testify in respect to facts which occurred in the lifetime of the deceased or prior to the ward's insanity, unless the executor, administrator, or guardian elects so to testify, except as provided in the following section." Although the appellants are the ex-ecutrices of the testator's will, yet in this proceeding they are not acting in an official capacity, but as individuals and against the interest of the estate. They stand, therefore, like any other party claiming adversely to the estate. The contest is between them and the estate represented by the appellees as legatees under the will. Tuck v. Nelson, 62 N. H. 469, 471; Whitaker v. Marsh, 62 N. H. 477; Perkins v. Perkins, 58 N. H. 405. The facts relating to the gift of the property occurred, if at all, in the lifetime of the testator, and were within his knowledge; and the appellants, by reason of the statute, cannot testify in regard to them. Was it in contravention of the provisions of the statute to permit them to testify to the matters objected to? "It is said * * * that the design of the provision of the statute which excludes the survivor from testifying against the estate of a deceased party is to place the parties upon equal footing, and not allow the living party to a trade or transaction to be a witness in relation to it, when the other party to the transaction, being dead, cannot testify." Tuck v. Nelson, 62 N. H. 469; Moore v. Taylor, 44 N. H. 370, 375; Chandler v. Davis, 47 N. H. 462—464; Clark v. Clough, 65 N. H. 43, 76, 23 Atl. 526. "These decisions demonstrate that a literal construction is not to be put upon the statute, but * * * that it is to be interpreted with reference to its general scope and object, which was to secure equality in the respect named between the living and the dead." Clark v. Clough, supra. In applying the statute to this case, it appears from the testimony of the appellants that the inscription upon the envelope, shown to be in the handwriting of the testator, declared the contents of the package to be "The property of Electa C. Bean and Emma R. Mead." This was direct evidence of a fact occurring in the lifetime of the testator. It was the living party testifying to the declaration of the decedent himself. It matters not that the declaration had been reduced to writing, for the writing was not produced in evidence. Had the declaration been spoken instead of written, the appellants would not be competent witnesses to testify to it Having been reduced to writing and then destroyed, they are equally incompetent witnesses to it They not only testified to the words used by the testator to declare the gift, but, in explanation of what he intended should be included in the gift by the use of the word "property," they gave evidence of the contents of the package. This was a part of his declaration expressing his intention. It would not have been different had he written upon the envelope a list of the securities, and the appellants had testified to his declaration in that form. The wife, in addition to giving the testator's declaration, was permitted to testify that she had possession of the securities the moment after he died. While her testimony about the possession, standing alone, may not have been within the statute, yet, when taken in connection with her testimony about the declaration, it was surely within its reason and purpose, for it abridged that rule of equality sought to be established between the living and the dead. The conclusion is that the appellants were incompetent witnesses to the gift, and that these exceptions should be sustained.

It does not appear that injustice will be done, within the meaning of the statute, by excluding their testimony. Pub. St. c. 224, § 17; Chandler v. Davis, 47 N. H. 462; Harvey v. Hilliard, 47 N. H. 551; Burns v. Madigan, 60 N. H. 197. As there were other witnesses to...