Hagerman v. Wigent

• Decision Date: 16 January 1896
• Court: Michigan Supreme Court
• Parties: HAGERMAN ET AL. v. WIGENT ET AL.

65 N.W. 756

108 Mich. 192

HAGERMAN ET AL. v. WIGENT ET AL.

Supreme Court of Michigan

Jan 16, 1896

Appeal from circuit court, Hillsdale county, in chancery; Victor H Lane, Judge.

Bill by James Hagerman and another against Andrew J. Wigent and another. Decree for complainants, and defendants appeal. Affirmed.

W. J Sampson, for appellants.

Guy M Chester and Fred M. Twiss, for appellees.

MONTGOMERY J.

This is a bill filed against the defendant Andrew J. Wigent executor, and Fred L. Wigent, legatee, under the will of Mary Rainey Pridgeon, to restrain the foreclosure of a mortgage executed by the complainants and their mother Avaline Hagerman, to Mary Rainey, afterwards Mrs. Pridgeon, in September, 1875. In December, 1878, and before her marriage to Pridgeon, Miss Rainey executed a will, bequeathing her property to defendant Fred Wigent. The claim of complainants is that during her lifetime Mary Rainey Pridgeon frequently expressed the intention of giving the two complainants, who were her nephews, the mortgage, and that she only expected and only desired to recover interest upon it while she lived; that to effectuate this intention she delivered the mortgage to her husband, Joshua Pridgeon, with instructions to deliver the same to complainants after her death; and that the mortgage was so delivered, but that the defendants, claiming title, commenced proceedings to foreclose by advertisement. Apart from the controversy upon the question of fact it is contended by defendants that there was no delivery of the mortgage, and that there was, therefore, no valid gift inter vivos. The circuit judge found that the mortgage was delivered to Joshua Pridgeon by deceased with instructions to deliver to complainants as stated. This was a sufficient delivery. Thacher v. St. Andrews Church, 37 Mich. 264; Foster v. Mansfield, 3 Metc. (Mass.) 412; Belden v. Carter, 4 Day, 66; Lathum v. Udell, 38 Mich. 238; Brown v. Stutson, 100 Mich. 574, 59 N.W. 238. It is insisted, however, that the testimony of the husband, Joshua Pridgeon, was not competent to show the delivery of the mortgage to him, or the instructions accompanying the delivery of the mortgage to him, as it involved communications made by the wife to the husband during coverture. 3 How. Ann. St. � 7546, excludes as a witness the husband or wife who is brought as a witness to testify against the other during coverture. Blanchard v. Moors, 85 Mich. 380, 48 N.W. 542; Berles v. Circuit Judge, 102 Mich. 495, 60 N.W. 967. To view preceding link please click here The statute also declares that "neither during the marriage or afterwards, without the consent of the other, shall be examined as to any communication made by or to the other during marriage." This provision is but declaratory to the common law. The word "communication" must be understood as having been used in the sense which had attached to it by its common use in the same construction. At the common law, testimony of the husband or wife was admissible, after coverture terminated either by divorce or death of the other spouse, in all cases where the facts sought to be proven did not fall within the inhibition against the disclosure of confidential communications between husband and wife made during coverture. Stew. Mar. & Div. �� 439, 470; 7 Am. & Eng. Enc. Law, 807. In this state it has been frequently held that the surviving husband or wife cannot disclose any communication made during coverture, confidential in its nature, or calculated to reflect upon the character of the deceased. Maynard v. Vinton, 59 Mich. 151, 26 N.W. 401; Hitchcock v. Moore, 70 Mich. 112, 37 N.W. 914; Carter v. Hill, 81 Mich. 275, 45 N.W. 988. The testimony of Pridgeon, it is true, relates to communications by the wife to him, but it is also shown that he was intrusted with the custody of the property to be delivered after her death, under circumstances which involved an expectation on her that the communication would be disclosed. It cannot be said to have been confidential. In the early case of Wells v. Tucker, 3 Bin. 366, evidence of a transaction almost identical with that testified to by Pridgeon was testified to by the wife of the intestate, and her evidence was treated as controlling, although the question of its competency was not discussed. In McGuire v. Maloney, 1 B. Mon. 224, the widow was permitted to testify that she saw her husband execute...