Berry v. Stevens

• Decision Date: 22 March 1879
• Citation: 69 Me. 290
• Parties: FRANK W. BERRY, executor, v. ANDREW J. STEVENS & others.
• Court: Maine Supreme Court

69 Me. 290

FRANK W. BERRY, executor, v. ANDREW J. STEVENS & others.

Supreme Judicial Court of Maine.

March 22, 1879

ON EXCEPTIONS.

The facts and questions raised are fully stated in the opinion.

J Williamson, for the plaintiff.

W H. McLellan, for the defendants.

BARROWS J.

In actions prosecuted or defended by an executor, or administrator, or other legal representative of a deceased person, the adverse party is not at liberty to testify respecting matters occurring before the death of such persons, except in the cases particularly specified in the statutes. R. S., c. 82, § 87. Stat. 1873, c. 145. Stat. 1876 cc. 83, 128.

That this is only a prudent safeguard will be admitted by all who have noticed the apparently increasing disregard of the sanction and obligations of an oath since the laws were so changed as to permit parties and interested witnesses to testify. Without it the widow and the orphan would be almost defenseless against the machinations of the greedy and unscrupulous. It is doubtless better that a careless business man should occasionally suffer during his lifetime for his neglect to have suitable evidence of his transactions, than to offer a premium for skilful perjury in the plunder of his estate when his mouth is closed in death.

The statutes regulating the admission of the testimony of parties are to be examined carefully and construed strictly. Dwelly v. Dwelly, 46 Me. 377. Kelton v. Hill, 59 Me. 259.

To take the note in suit out of the statute of limitations plaintiff relied upon a payment of $400 upon it, made in 1873. The defendants had in their possession a receipt signed by the testatrix for the amount thus paid. Plaintiff gave the defendants notice to produce it, which they declined to do, and it was not produced until the plaintiff had offered testimony tending to show that one of the defendants had exhibited such a receipt, claiming that it was a genuine receipt of the testatrix, and that he had paid the amount to her, supposing that it would be endorsed on the note. Here the plaintiff stopped, and the exceptions state that he did not use the receipt in evidence. It is not perceived that he could have used it, except in connection with testimony as to the defendants' acts and declarations respecting it. The receipt itself, without such testimony, would be no more competent to establish a payment than an endorsement made by the testatrix upon the note.

But hereupon one of the defendants took the stand, produced the receipt, read it to the jury, and, under the guise of explaining it, against the objection of the plaintiff, proceeded to testify to an independent agreement, which he said the testatrix made with him, to give up the note on which more than $600 was then due, in consideration of the payment of the $400 paid when he took the receipt. The body of the receipt was written by the defendant who gave this testimony, and it runs thus: " Received of A. J. Stevens & Co. $400, to be endorsed on a note signed by us and John Stevens as surety. Belfast, April 12, 1873. P. C. Berry."

The defendant further testified that when he paid the money to Mrs. Berry, " she says, ‘ I have not got the note here to give you, but I will have it and give it to you.’ Said I, ‘ you told me you would give me my note, and I feel as though I ought to have it.’ She says, ‘ I will give you a receipt for it; you are not afraid to trust me,...