Durham v. Shannon
| Decision Date | 21 December 1888 |
| Docket Number | 13,997 |
| Citation | 19 N.E. 190,116 Ind. 403 |
| Parties | Durham v. Shannon |
| Court | Indiana Supreme Court |
From the Vigo Superior Court.
The judgment is affirmed, with costs.
S. B Davis, S. C. Davis, R. B. Stimson and S. C. Stimson, for appellant.
J. E Lamb, G. W. Faris and S. R. Hamill, for appellee.
Replevin by Shannon to recover the possession of a mare and colt, of which he alleges he is the owner, and which it is charged the defendant, Durham, unlawfully took and detained, etc.
Upon an issue made by the general denial, there was a trial resulting in a verdict and judgment for the plaintiff.
It appeared that Patrick Shannon, since deceased, purchased the mare at a public sale in 1877. The plaintiff, although not related by blood, had been in some sense a member of Shannon's family from his early childhood, and claimed that the latter had presented him the mare, on the day he purchased her, as a gift. The animal remained in the possession of Shannon, who used her apparently as his own until the fall of 1885, when he sent her to Lexington, Kentucky, to be bred. She remained there until after Shannon died, which occurred in April, 1886, and until after she had the colt in controversy. Subsequently the administrator of the decedent's estate paid the bills incurred in Kentucky, and while the mare and colt remained in that State they were sold by order of the court by the administrator to the defendant, Durham, for $ 500, who brought them to Indiana at his own expense, in March, 1887. The plaintiff commenced this suit in May following.
At the trial the plaintiff produced witnesses who gave evidence of declarations made by Patrick Shannon in his lifetime, tending to show that he had given the animal to the plaintiff, and the latter was also permitted to testify in his own behalf, to the effect that the decedent had presented the mare to him on the day she was purchased and brought to the Shannon homestead.
On the appellant's behalf it is now contended that the plaintiff was incompetent to testify concerning the alleged gift of the mare to him by the decedent in his lifetime, within the prohibition contained in section 498, R. S. 1881.
This section enacts that "In suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate."
In determining the competency of a witness, the accepted rule is not to regard the mere letter of the statute, but to look to its spirit and purpose. Clift v. Shockley, 77 Ind. 297; Wiseman v. Wiseman, 73 Ind. 112; Ketcham v. Hill, 42 Ind. 64; Peacock v. Albin, 39 Ind. 25.
The evident purpose of the section under consideration was to protect the estates of deceased persons from the apprehended danger of permitting the surviving party to a contract or transaction to testify in respect to it, after the lips of the other party had been closed by death. Hence a party to a transaction involved in the issue on trial is put under a statutory disability, and is excluded from testifying when the other party to the same matter is disabled by death, and where he is represented in the action which involves such contract or transaction by an executor or administrator, or some one who, in legal contemplation, stands in his place, and when the judgment to be rendered may affect his estate either directly or indirectly.
Accordingly it was held in Taylor v. Duesterberg, 109 Ind. 165, 9 N.E. 907, that where a party to a contract or transaction is dead, and his rights in the contract or subject-matter have passed to another, who represents him in the action or proceeding, the true spirit and purpose of the act excludes the surviving party to the transaction from testifying in relation to matters pertaining thereto, which occurred during the lifetime of the decedent. Generally speaking, three things must concur in order to exclude the testimony of the surviving adversely interested party: (1) The transaction, or the subject-matter thereof, must be in some way directly involved in the action or proceeding, and it must appear that one of the parties to the transaction about to be proved, is dead. (2) The right of the deceased party must have passed, either by his own act or that of the law, to another, who represents him in the action or proceeding in the character of executor, administrator or in some other manner in which he is authorized by law to bind the estate. (3) It must appear that the allowance to be made or...
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