Palmateer v. Tilton

• Citation: 40 N.J.E. 555,5 A. 105
• Parties: PALMATEER and others v. TILTON, Adm'r.
• Decision Date: 30 November 1885
• Court: United States State Supreme Court (New Jersey)

5 A. 105

40 N.J.E. 555

PALMATEER and others

v. TILTON, Adm'r.

Court of Errors and Appeals of New Jersey.

November Term, 1885.

On appeal from a decree of the chancellor, whose opinion is reported in Palmateer v. Tilton, 39 N. J. Eq. 40.

BEASLEY, C. J. This is a bill for specific performance. The contract sought to he enforced was for the sale of land which was formerly the property of William A. Harvey, deceased, and it was alleged to have been made with the complainants by his executor under a power to that purpose in his will. His executor, one Abner Allen, is now dead, and this suit is brought by the plaintiffs against the administrator with the will annexed of the beforementioned William A. Harvey. In the court below, the complainant, Amos Palmateer, was not permitted to be a witness for the purpose of proving the bargain for the sale of the land in question. It is admitted that such exclusion is not to be justified by the language of the statute which is applicable. This is its language, viz.:

"That in all civil actions," etc., "any party thereto may be sworn and examined as a witness, notwithstanding any party thereto may sue or be sued in a representative capacity: provided, nevertheless, that this supplement shall not extend so as to permit testimony to be given as to any transaction with or statement by any testator or intestate represented in said action." P. L. 1880, p. 52.

It will be observed that this exclusive clause embraces only transactions with and statements by "any testator or intestate." In the present case a transaction with the executor of the testator was excluded. The case was supposed to be within the equity of the act, and hence the rejection of the testimony. But the language of the act is clear and definite, and the result, if we adhere to such language, is entirely reasonable; and, this being the case, the judicial duty is one of interpretation simply. The statute itself enumerates the cases in which the testimony is to be rejected, and no case can be added to that enumeration. If we attempt to leave the plain terms of the act, we enter into an undefined field of inference and conjecture. The regulation applies to the practice in the trial of causes, and it is important, therefore, that its limitations should be clear. If, in the present instance, the statutory terms are to be disregarded, and the operation of the law extended, what is to be its reach? If a surviving contractor cannot prove by his own testimony a...