Newton v. Newton

• Decision Date: 30 May 1890
• Citation: 14 S.W. 157
• Parties: NEWTON <I>et al.</I> v. NEWTON.
• Court: Texas Supreme Court

14 S.W. 157

NEWTON et al. v. NEWTON.

Supreme Court of Texas.

May 30, 1890.

Appeal from district court, Guadalupe county.

J. A. & N. O. Green, for appellants. W. M. Rust, for appellee.

GAINES, J.

The cause of action in this case is a promissory note executed by appellants to their father, James Newton. James Newton died, having devised and bequeathed all of his property to his second wife, Mary Newton, who was also the step-mother of appellants. She brought the suit on the note as legatee under her husband's will. The defendants pleaded want of consideration. They averred, in substance, that their father, having divided among them a large portion of his property, became apprehensive that he had not reserved enough for his own wants, and applied to them to execute the note sued on, for the purpose of contributing to his support, if necessary, and that, by reason of such request, they executed the note, without any other consideration whatever. In order to maintain their defense the defendants offered to prove, by the wife of one of them, conversations between James Newton and her husband, during the life-time of the former, which tended to show that the averments in the answer were true. The testimony was objected to by the plaintiff, and was excluded by the court. We think this was error. It is urged by the appellants that the witness was not a party to the suit, and had no interest in the result, and was therefore competent to testify as to the facts offered to be proved. This ground is not tenable. A judgment against her husband in the suit would have been, in effect, a judgment against the community property, in which she had a half interest. As in the case of Simpson v. Brotherton, 62 Tex. 170, she was a real, though not a nominal, party to the suit.

But the question arises whether the capacity in which the plaintiff sues is such as to preclude any party from testifying to statements by, or transactions with, her husband in his life-time. Article 2246 of the Revised Statutes removed the bar of the common law which excluded parties from testifying in their own cases. To the rule so established, article 2248 makes certain exceptions. That article reads as follows: "In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent, arising out of any transactions with such decedents." The latter provision as to heirs and legal representatives was not contained in the original act. Pasch. Dig. art. 6827. Construing the first statute, this court has held that the exceptions could not be extended by implication to a class of persons not named, although the reasons for embracing them were equally as strong as those which existed for including the persons expressly designated. Roberts v. Yarboro, 41 Tex. 451; Markham v. Carothers, 47...