Palmer v. Hanna

• Decision Date: 01 December 1881
• Citation: 6 Colo. 55
• Parties: PALMER v. HANNA.
• Court: Colorado Supreme Court

6 Colo. 55

PALMER v. HANNA.

Supreme Court of Colorado

December, 1881

Error to County Court of Arapahoe County.

THE facts are sufficiently stated in the opinion.

Mr. J Q. CHARLES, for plaintiff in error.

Messrs BENEDICT and PHELPS, for defendant in error.

BECK J.

The first question presented for our consideration by this record arises upon the refusal of the court below to permit the plaintiff, Margaret Palmer, to be sworn as a witness in her own behalf, and to prove her demand by her own testimony.

Plaintiff is the widow of Frank Palmer, deceased, and her claim against his estate is for moneys received by him and deposited to his private bank account, which arose from a sale of a house and lots in the city of Denver, also household and other personal property belonging to his wife, the plaintiff.

The question is controlled by sections 1, 2 and 5, ch. 104 General Laws, entitled 'Witnesses.'

Section 1 removes the disqualification of witnesses on the ground of interest, or the conviction of crime, except as afterwards stated.

Section 2 contains several exceptions to the rule announced in the first section; one of which is that 'no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as * * * the executor or administrator, heir, legatee or devisee of any deceased person, * * * unless when called as a witness by such adverse party so suing or defending.'

Section 5 is as follows: 'That no husband or wife shall, by virtue of section 1 of this act, be rendered competent to testify for or against each other, as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or defendant, or where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the neglect of the husband to furnish the wife with a suitable support; and except, also, in cases where the litigation shall be concerning the separate property of the wife, in all of which cases the husband and wife may testify for or against each other in the same manner as other parties may under the provisions of this act.'

Counsel for plaintiff in error insist that inasmuch as the litigation concerns the separate property of the wife, now widow, of the deceased, she was a competent witness in her own behalf under the fifth section.

To warrant this construction the position is assumed that the fifth section must be construed by itself, and without reference to the first and second sections.

This position is clearly untenable. An examination of the whole act shows an intention on the part of its framers that its several sections should be construed together.

So far as the marriage relation is concerned, two obstacles existed at common law to prevent husband and wife from testifying for each other. One was that of interest in the event of the suit; the other was the marriage relation itself.

The first obstacle would be wholly removed in such case, by the first section of the statute, but for the exceptions contained in the fifth section. The latter section confines such testimony to certain specified cases, among which is, 'where the litigation shall be concerning the separate property of the wife.' But this section goes further, and provides affirmatively, that in this and other cases therein specified, 'the husband and wife may testify for or against each other in the same manner as other parties may under the provisions of this act,' the effect of which provision is to wholly remove the disqualification of the marriage relation, so far as concerns the cases last referred to. In respect to these cases husband and wife testify as unmarried persons.

It is to be observed, however, that they are accorded no more privileges than the unmarried, and are made subject to the same disabilities; that is to say, they may testify for or against each other 'in the same manner as other parties may under the provisions of this act.'

When, therefore, husband or wife dies, the survivor becomes subject to the provisions of section two of the act, which excludes the testimony of the living, as against the legal representative of the deceased.

The ruling of the county court upon the admissibility of the testimony proposed was correct. The widow was plaintiff; the administrator of her deceased husband was defendant. She proposed to testify, of her own motion, that certain property sold in the life-time of the husband belonged to her, and that she consented to the sale and permitted her late husband to take the money, upon an understanding between them that he was to reinvest it in another homestead which was to belong to her, but which was never done.

Such testimony is specifically prohibited by the second section, when offered by a party to a civil action under the circumstances.

These sections of our statute were copied from the statutes of Illinois, where they bear the same numbers as designated in our own, and where they have received, with a single exception, perhaps, the same construction which we have given them.

In the case of Pyle et al. v. Oustatt et al. 92 Ill. 210, it was contended that Naomi Pyle, wife of the appellant, was entitled to testify under the fifth section, although the appellees, Henry and Hiram Pyle, who were the real parties in interest, were defending as heirs at law of Andrew Pyle, deceased.

The court say: 'We see nothing in this section looking to the view contended for by appellant. There is, indeed, nothing in the fifth section that will, in any case, have the effect of rendering one competent as a witness who is incompetent under the first and second sections. Where one is suing or defending as heir, devisee, etc., no adverse party, or party having an interest in the event of the suit, can, on his or her own motion, testify, and it is wholly immaterial whether such adverse party is married or single,-the rule applies to all persons alike.'

The same question presented by this record was passed upon in the case of Connelly et al. v. Dunn et al. 73 Ill. 218.

The heirs at law of Charles Dunn filed a bill against his widow for the partition of certain lands of which Dunn died seized. The widow filed a cross-bill, setting up that the premises were purchased with her money, with the express agreement on the part of her late husband that the title should be taken in her name, and asking the court to declare a resulting trust in her favor in the whole premises.

It was insisted that as the litigation was concerning the separate property of the widow, she was entitled to testify under the fifth section of the statute. But the supreme court held that a proper construction of the whole act rendered her testimony clearly incompetent. That the ground of the objection was not the marital relation, but the death of the husband, by reason of which his testimony could not be had to meet that offered by his widow against his legal representatives. That clause of the fifth section which permits husbands and wives to testify for and against each other, 'in the same manner as other parties may, under the provisions of this act,' was construed to subject husband and wife to the same conditions in testifying as other parties.

Counsel for appellant say the last cited case is in conflict with all the decisions of the same court, both prior and subsequent. An examination of the cases referred to shows the statement to be unfounded.

One of their propositions is as follows: 'Again, the bill in the case of Connelly v. Dunn was filed by heirs to partition the real estate of the decedent against the widow. In this respect the case is like the cases of Pigg v. Carroll, 89 Ill. 207, and Galbraith v. McLain, 93 Ill. 379, in both of which cases the widow was held a competent witness, while she is excluded in Connelly v. Dunn, 73 Ill. supra.'

In Pigg v. Carroll, 89 Ill. 207, there was no widow in the case. It was a bill for partition between heirs. The property belonged to the litigants, and the court held that it was immaterial how their title was acquired, so far as that action was concerned, whether by purchase or descent, and that there was no more reason to say that the parties were suing or defending as heirs, than if the property had been acquired otherwise than by inheritance. No objection was interposed to the testimony of the married women who were parties to the cause, for, being heirs, the litigation concerned their separate property, and it seems to have been conceded that they were entitled to testify under the statute.

The objection was to the right of their husbands to testify. The court, however, very properly held that in a litigation concerning the separate property of married women, wherein they were competent witnesses, their husbands were also competent witnesses on their behalf.

In the other case, Galbraith v. McLain, 93 Ill. 379, there was a widow, but she was neither a party to the suit nor interested in the results thereof. It was a contest between the heirs of the same decedent, to enforce the specific performance of a contract, alleged to have been made by the deceased...