McGuire v. Maloney

• Court: Kentucky Court of Appeals
• Writing for the Court: MARSHALL, JUDGE:
• Citation: McGuire v. Maloney, 40 Ky. 224 (Ky. Ct. App. 1841)
• Decision Date: 28 April 1841
• Parties: McGuire v. Maloney.

40 Ky. 224

McGuire v. Maloney.

Court of Appeals of Kentucky.

April 28, 1841

Husband and wife. Witness. Competency. Evidence.

APPEAL FROM THE ESTILL CIRCUIT.

Turner for appellant.

Breck and Goodloe for appellee.

OPINION

MARSHALL JUDGE:

The case stated.

THIS was an action of trover, brought by John Maloney against McGuire, who, as administrator of John Maloney, Sr., the plaintiff's father, had sold divers goods and chattels as belonging to the estate of the decedent, but which the plaintiff claims to have been his property, under an instrument of writing purporting to have been executed by his father and himself, in the presence of two subscribing witnesses, and to transfer to him the property in question.

To prove the execution of this instrument, the plaintiff introduced his mother, the widow of John Malony, who stated, in substance, that the two subscribing witnesses were both dead; that she saw her husband write the instrument and sign the names of himself and the plaintiff, and also of the subscribing witnesses, whom she also saw make their marks; that she heard the two Maloneys make the agreement and acknowledge it; and that her husband handed the instrument to her at its date, and she had kept it ever since; whereupon the instrument was handed to the jury.

The defendant objected to the competency of this witness when she was offered, and afterwards moved to exclude her testimony and the instrument from the jury, and having taken exceptions to the opinions of the Court on these and other points, brings the case up for the revision of this Court, and principally upon the question of the competency of the witness.

Upon this question it may be remarked in the first place, that so far as appears, the witness had no interest, herself, in the matter about which she was called to testify, and that her testimony could not effect the interest, the person, or the character of her deceased husband.

It is, nevertheless, true that the policy of the law, subserving the fundamental interests of society, so far protects that privacy and confidence which are essential to the marriage relation, and necessarily spring from it, as not only not to allow, but to prevent, even after the termination of the coverture, any disclosure by the wife, in a court of justice, which implies a violation of the confidence which was reposed in her as a wife. The argument of the counsel for the appellant would go much farther, and seal the lips of the wife from disclosing any act or declaration of the husband, done or said in her presence, and especially in his own house. But neither the principles laid down by the elementary treatises referred to, or any adjudged case which has been seen, nor the reason and purpose of the law require, or indeed authorize such an extension of the rule.

Wife either during coverture or after death of husband, from reasons of policy, is not a competent witness to make any disclosure...