Haskell v. Hervey

• Decision Date: 12 December 1882
• Court: Maine Supreme Court
• Parties: THOMAS H. HASKELL, administrator of the estate of HELEN MCLEOD ANGIER, v. CALVIN HERVEY, administrator of the estate of OAKES ANGIER.

74 Me. 192

THOMAS H. HASKELL, administrator of the estate of HELEN MCLEOD ANGIER, v. CALVIN HERVEY, administrator of the estate of OAKES ANGIER.

Supreme Judicial Court of Maine.

December 12, 1882

ON EXCEPTIONS.

The opinion states the case.

Benjamin Thompson and Edward Woodman, for the plaintiff, cited Stat. 1873, c. 145; R. S., c. 82, § 82; Kelton v Hill, 59 Me. 259; Gunnison v. Lane, 45 Me. 165; Rawson v. Knight, 73 Me. 342; Blaisdell v Cowell, 14 Me. 373; Ward v. Chase, 35 Me. 515; Jones v. Lowell, 35 Me. 538; Paul v. Frost, 40 Me. 295; Wright v. Boston, 126 Mass. 164; Corinth v. Lincoln, 34 Me. 312; Stewart v. Hanson, 35 Me. 509; Cogswell v. Doliver, 2 Mass. 222; Hooper v. Taylor, 39 Me. 224; Silver v. Worcester, 72 Me. 322; School District v. Æ tna Ins. Co. 62 Me. 330; Mussey v. Mussey, 68 Me. 346; Keen v. Jordan, 53 Me. 146; Berry v. Jordan, 53 Me. 402; Curtis v. Downes, 56 Me. 25; McCarthy v. Mansfield, 56 Me. 540; Willard v. Randall, 65 Me. 81; Frost v. Frost, 63 Me. 404; Robinson v. Hook, 4 Mason 150; Hemenway v. Gates, 5 Pick. 321; Sherwood v. Sutton, 5 Mason 143; Bresnihan v. Sheehan, 125 Mass. 13; Blake v. Blake, 64 Me. 177; Trowbridge v. Holden, 58 Me. 120; Webster v. Webster, 58 Me. 139; Junks v. Grover, 57 Me. 586.

William H. Fogler, for the defendant.

The case comes to the law court on exceptions. As the findings of the presiding justice as to the facts are final and conclusive, the office of the report of the evidence is merely to explain the exceptions.

At common law neither the plaintiff nor Fred W. Angier were competent witnesses, one being a party and the other interested.

The statutes admitting parties and interested persons to testify are in derogation of the common law and are to be strictly construed. The right of such persons to testify is not to be inferentially presumed. Dwelley v. Dwelley, 46 Me. 377; Kelton v. Hill, 59 Me. 261; Berry v. Stevens, 69 Me. 291.

The statute, R. S., c. 82, § 82, removing disability of interested parties, does not apply to cases in which an administrator is a person. See Berry v. Stevens, 69 Me. 290, 291; Jones v. Simpson, 59 Me. 180.

Could the plaintiff testify to facts occurring before the death of the defendant's intestate? The plaintiff's intestate, if living, could not have so testified unless the defendant had first testified in relation thereto. The rule of exclusion applies to every party " adverse" to this defendant in his representative capacity, and that includes this plaintiff in his representative capacity. R. S., c. 82, § 87.

The extract from Mrs. Angier's diary and the letter of Ezekiel Whitman were inadmissible as evidence. It is no answer to our objections to the admission of this testimony that the presiding judge being a man learned in the law, may be presumed to have made his decision upon so much of the testimony as is legally admissible. Nor is it any answer that the testimony had no weight in the mind of the learned judge in the determination of the case.

His report does not show whether the evidence was considered or what weight it had. The point is here. This case was submitted " with the right to except," and it was the right of the defendant to have all inadmissible testimony excluded.

As to the finding that the bonds claimed came into Angier's hands to hold in trust for his wife. The finding of the presiding judge upon the facts is final. Whether or not the facts proved constitute a trust, is a question of law. And the finding of the judge is open to exceptions. Kellogg v. Curtis, 65 Me. 59.

Counsel contended that the facts proved in this case did not constitute a trust.

If Angier converted the bonds or any of them fraudulently, the plaintiff can recover for such only as he proves were converted within six years prior to the death of his intestate, there being no proof of any act of concealment on his part and the plaintiff's claim not being for the fraud committed, but for the original cause of action. R. S., c. 81, § § 79, 92; Cole v. McGlathry, 9 Me. 131; Penobscot R. R. Co. v. Mayo, 65 Me. 566; Wood v. Carpenter, 101 U.S. 135.

APPLETON C. J.

This is an action of assumpsit for money had and received, brought under R. S., c. 66, § 13, by the plaintiff as administrator of the estate of Helen McLeod Angier, against the defendant, administrator of the estate of Oakes Angier, to determine the claim of the plaintiff's intestate against the estate of the defendant's intestate, the claim having been disallowed in whole by the commissioners in insolvency.

The case was referred to the justice presiding, who found the following facts: That Helen M. Angier was, during the last thirty-five years of her life, the wife of Oakes Angier; that she died in May, 1879, and he about one year thereafter; that Mrs. Angier in 1863, received from her grandfather, Ezekiel Whitman, bonds of the city of Bangor and of the Atlantic and Saint Lawrence Railroad Company, of the par value of four thousand dollars, which went into the possession of her husband, to hold for her in trust, and that he in his lifetime, without her permission, converted them to his own use; that in August, 1866, Mrs. Angier received from William Willis, executor of the last will and testament of Ezekiel Whitman, six bonds of the city of Portland, of the par value of one thousand dollars each, which in like manner went into the possession of her husband, and were collected and converted to his own use, without the permission of Mrs. Angier.

Upon these findings he ruled that the statute of limitations constituted no bar to the claim, and that ten thousand dollars should be allowed against the estate of Oakes Angier.

Exceptions have been alleged, and the whole testimony has been reported. So far as relates to the effect of the testimony, if admissible, the judgment of the justice by whom the cause was heard, is conclusive. The questions to be determined have relation to the admission of evidence and his rulings in matter of law upon the same. All rulings during the progress of the trial which are not found in the exceptions are to be deemed as waived.

I. It is objected that the plaintiff, who represents Mrs. Angier, is not a competent witness. We think otherwise.

It is provided by c. 145 of the acts of 1873 that " in all cases in which an executor, administrator or other legal representative of a deceased person is a party, such party may testify to any facts legally admissible upon the general rules of evidence, happening before the death of such person; and when such person so testifies, the adverse party shall neither be excluded nor excused from testifying in relation to such facts, and any such representative party or heir of a deceased party may testify to any facts legally admissible upon general rules of evidence, happening after the decease of the testator, intestate or ancestor; and in reference to such matters the adverse party may testify."

The language is most general. It applies in all cases when an executor, administrator or other legal representative of a deceased person is a party. The plaintiff assuredly is such. The wisdom of the statute is apparent, as without it material and important evidence necessary for the purposes of justice might otherwise be excluded.

II. Fred W. Angier, the son and heir of Mr. and Mrs. Angier, was properly admitted as a witness. The case of Rawson Adm'r, v. Knight, Adm'x, 73 Me. 340, is directly in point, as well as Gunnison, Adm'r, v. Lane, 45 Me. 165, In the case first cited, both parties represented the estates of deceased persons, and it was held that an interested witness...