Montgomery v. Grant

• Decision Date: 20 February 1868
• Citation: 57 Pa. 243
• Parties: Montgomery <I>et al. versus</I> Grant <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 243

57 Pa. 243

Montgomery et al. versus Grant et al.

Supreme Court of Pennsylvania.

February 12, 1868.

February 20, 1868.

February 12th 1868.

Before THOMPSON, C. J., STRONG, AGNEW and SHARSWOOD, JJ. READ, J., at Nisi Prius

Error to the Court of Common Pleas of Philadelphia: No. 223, to January Term 1868.

COPYRIGHT MATERIAL OMITTED

I. Hazlehurst and P. McCall, for plaintiffs in error.—The witnesses were substantially parties to the issue: Asay v. Hoover, 5 Barr 21; Post v. Avery, 5 W. & S. 509; Carter v. Trueman, 7 Barr 327; Acts of June 16th 1836, Pamph. L. 777, Purd. 446, pl. 103; March 15th 1832, § 41, Pamph. L. 146, Purd. 861, pl. 23; Haus v. Palmer, 9 Harris 296.

They were liable for costs because they were substantially parties at the commencement of the action. They could not discharge their liability by a release of their interest: Gallagher v. Milligan, 3 Pa. R. 177; Culbertson v. Alexander, 5 Watts 496; Hoffman v. Strohecker, 9 Id. 183.

As parties they were incompetent under the principle of Post v. Avery, supra; Wilkinson v. Turnpike Co., 6 Barr 398; Wolf v. Fink, 1 Barr 435; Parke v. Bird, 3 Id. 360; Irwin v. Shumaker, 4 Id. 199; Norris v. Johnston, 5 Id. 287; Marshall v. Franklin Bank, 1 Casey 384; Cambria Iron Co. v. Tomb, 12 Wright 387; Noble v. Laley, 14 Id. 285; Hartman v. Keystone Ins. Co., 9 Harris 476; Steininger v. Hoch, 6 Wright 432; Cornell v. Vanartsdalen, 4 Barr 365; Graves v. Griffin, 7 Harris 176; Bailey v. Knapp, Id. 192; Hatz v. Snyder, 2 Casey 511; Loudon S. Fund v. Hagerstown S. Bank, 12 Id. 498.

B. H. Brewster, Attorney-General (with whom was G. L. Crawford), for defendants in error.—Interest is the reason for exclusion as a witness: Mant v. Mainwaring, 8 Taunt. 139; 2 Camp. 333 n.; Worrall v. Jones, 7 Bing. 395; Bate v. Russell, 1 Mood. & Malk. 332; Affelo v. Fourdrinier, Id. 334 n.; s. c., 6 Bing 306; 1 Phil. Ev. 36; Johnson v. Blackman, 11 Conn. 342-6; Kincaid v. Purcel, 1 Smith 164; Rohrer v. Morning Star, 18 Ohio 579; Sharp v. Morrow, 6 Monroe 354-5; Price v. Gregory, 4 McCord 261; Canty v. Sumpter, 2 Bay 93; Willings v. Consequa, 1 Pet. C. C. R. 301; Steele v. Phœnix Ins. Co., 3 Binn. 306; Hart v. Heilner, 3 Rawle 407; Wolf v. Fink, 1 Barr 435; Kirk v. Ewing, 2 Id. 453; Parke v. Bird, 3 Id. 360; Irwin v. Shumaker, 4 Id. 199; Norris v. Johnston, 5 Id. 287; Marshall v. Franklin Bank, 1 Casey 384; Swanzey v. Parker, 14 Wright 454-5; Cambria Iron Co. v. Tomb, 12 Id. 394; Noble v. Laley, 14 Wright 281; Ryerss v. Trustees, 9 Casey 114; Entriken v. Brown, 8 Id. 364; Evans v. Dela, 11 Id. 451; Kerns v. Soxman, 16 S. & R. 315; McIlroy v. McIlroy, 1 Rawle 433; Landis v. Landis, 1 Grant 248; Leiper v. Pierce, 6 W. & S. 555; Patterson v. Reed, 7 Id. 144; Reading Railroad Co. v. Johnson, Id. 317; Cochran v. McTeague, 8 Id. 272; Muirhead v. Kirkpatrick, 2 Barr 425; Graves v. Griffin, 7 Harris 176; Newlin v. Newlin, 1 S. & R. 275; Burd v. McGregor, 2 Grant 353; Beaver v. Beaver, 11 Harris 167; Burkholder v. Lapp, 7 Casey 322; Hinckle v. Eichelberger, 2 Barr 483.

The opinion of the court was delivered, February 20th 1868, by SHARSWOOD, J.

This was a feigned issue directed by the Register's Court to try the validity of a paper writing, propounded as the last will and testament of Isabel B. Montgomery, deceased, bearing date November 23d 1865. Mrs. Montgomery had executed a previous instrument of November 18th 1865, the original validity of which was not disputed, but the contention was only as to the second one, which revoked the first. The parties to the issue were the executors and persons claiming under the first, as plaintiffs, and those under the second, as defendants. Adeline Mack and Julia Duval, two of the residuary legatees under the instrument of November 23d, were not named as parties. They were offered as witnesses for the defendants, and having severally executed renunciations or releases to the executors, were admitted and examined. Their competency is the only question now presented.

It is not denied that they would have been entitled to a larger share of the estate under the second than under the first paper. Being thus beneficially interested at the commencement of the proceedings, they were substantially parties to the issue, though not named: Asay v. Hoover, 5 Barr 21; Carter v. Trueman, 7 Id. 315; Burrows v. Shults, 6 Id. 325. They were, therefore, liable for costs, and from this responsibility could not discharge themselves by a release. The opposite parties have a right to look to those who are beneficially interested in the suit: Gallagher v. Milligan, 3 Penna. Rep. 178. This, too, was the rule as settled in England before the change recently introduced in the law of that country on the subject of the competency of witnesses. It will be presumed that the proceeding was instituted by the direction of the party interested; and therefore in Bell v. Smith, 5 B. & C. 188, in an action by the brokers on a policy of insurance, one of the parties for whose benefit the policy was effected, having released to the plaintiffs, was offered as a witness, and it was held on error in the King's Bench that he was incompetent by reason of his liability for costs. C. J. Abbott said: "There can be no doubt that originally he was substantially, although not nominally, a plaintiff in the cause; and we ought not to be astute to give effect to that which makes the real plaintiff a witness. The action being for his benefit, although brought in the names of the brokers, it must, until the contrary is shown, be presumed that it was brought by him and by his authority." Now, admitting that a responsibility for costs would not attach to a party, who had renounced all claim before...