Patton v. Wilson

• Decision Date: 31 December 1878
• Citation: 70 Tenn. 101
• Parties: Patton v. Wilson, Adm'r, etc.
• Court: Tennessee Supreme Court

70 Tenn. 101

Patton

v.Wilson, Adm'r, etc.

Supreme Court of Tennessee.

December Term, 1878.

FROM WILLIAMSON.

Appeal in error from the Circuit Court of Williamson County.W. P. MARTIN, Judge.

J. G. WALLACE for Plaintiff.

T. W. TURLEY for Defendant.

COOPER, J., delivered the opinion of the Court.

Robert Wilson, administrator de bonis non of the estate of John B. Patton, deceased, brought his action at law against James Patton for the recovery of $550.42, with interest from the 6th of January, 1869.The defense relied on was payment.The jury found a verdict in favor of the plaintiff below, and the defendant appealed in error.There is evidence to sustain the verdict, and the only error which can be relied on for reversal is in the admission of the testimony of Lavinia Patton, the widow of the plaintiff's intestate.

The defendant had borrowed from the intestate the amount of money sued for, but claimed that he had repaid it on the 6th of January, 1869, out of money that day received from one McCandless, for land sold to him by intestate, defendant, and W. D. Patton, all brothers.W. D. Patton was introduced as a witness, and proved that he was present when the McCandless money was divided between his brothers, the share of the defendant being $2,700, and the share of the intestate $1,950.He further deposed that, after the division, defendant asked intestate for the note which he held as evidence of defendant's indebtedness, adding that he wished to pay it.The intestate replied that the note was at home, and he would get it and hand it to defendant.That thereupon, the defendant counted out from his share of the McCandless money the sum due, and paid it to the intestate.It is proved by another witness that a few days afterward, the intestate not being able to find the note, had executed a receipt to the defendant, to be held until the note could be found.

These facts are not denied by the plaintiff, but the theory upon which the action was brought is, that the money was returned by the intestate to the defendant, and the receipt surrendered.There is no direct evidence of these facts, if facts they be, but they are sought to be established by circumstances and the admissions of the defendant.

One of the circumstances most relied on was the possession by the intestate before, and at his death, of the receipt.Another circumstance, which rested alone on the testimony of the intestate's widow, was the amount of money carried home by the intestate on the 6th January, 1869.

The testimony of the widow, so far as it is necessary to be stated, all of which was admitted over the objections of the defendant, except one clause ruled out on objection, was as follows:

“She was the wife of John B. Patton, deceased.She always kept charge in his lifetime of his valuable papers, and also kept his money.After his death she found the receipt among his valuable papers.She knew the receipt by its color, blue, and saw it among his papers before his death, and knew it by its color and the way it was folded.”Then follows the clause, the objection to which it was sustained: (“She said her husband told her, on the 6th of January, 1869, when he came home, that the money he handed her was the McCandless money.”)Witness continued, objection being taken, but overruled: “She said the money was in two rolls, that she counted the money, and found that there was in all $1,950.”

The bill of exceptions is so worded that it is not certain that all of this testimony was objected to.But so much of it as related to the receipt, and the last clause in relation to the money, were certainly objected to, and the objection overruled by the court.The possession of the receipt by the intestate at the time of his death, and the fact that the intestate, on the 6th of January, 1869, carried home only $1,950 of the McCandless money, were important circumstances to rebut the defense of payment.The question is, therefore, directly raised, whether in a suit brought by a personal representative or the recovery of a debt due to his intestate, the widow of the intestate is a competent witness for her husband's estate, to prove facts which came to her knowledge by means of the marital relation.

By the common law, parties were, in general, excluded from being witnesses for themselves, and the rule was extended to husband and wife, neither of them being admissible as a witness in a cause, civil or criminal, in which the other was a party.The exclusion of husband and wife was founded partly on the identity of their legal rights and interests, and partly on principles of public policy which lie at the basis of civil society.Co. Litt., 6b;Barker v. DixieRep. Temp., Hardw., 264;Vowles v. Young, 13 Ves., 144.On the latter ground, whatever has come to the knowledge of either by reason of the confidence which the marital relation produces, can not be given in testimony, even though the other party be no longer living.Monroe v. Twistleton, Peak'sEv., App. 91, confirmed in Aveson v. Lord Kincaid, 6 East, 192;Stein v. Bowman, 13 Pet., 223.

The rule of the common law was fully recognized and adpoted by this court in Brewer v. Ferguson, 11 Hum., 565, where upon an issue of devisavit vel non over the husband's will, the wife, although not interested in the result nor a party to the suit, was held incompetent to prove the “conduct and conversations” of the husband during the marital relation, tending to establish the alleged insanity of the husband.“We are not disposed,” says Totten, J., in delivering the opinion of the court, “to follow the cases referred to by the counsel, in which the rule of the common law, founded in public interest and policy, has been relaxed or qualified, as where it may seem to the court that the fact proposed to be proved is not of a confidential nature; or where the marriage relation no longer exists by reason of a divorce, or the death of one of the parties, and the witness is adduced to prove facts or admissions that occurred during the marriage.”

In Kimbrough v. Mitchell, 1 Head, 540, the husband had brought an action for damages for an assault and battery committed on him by the defendant, who was a brother of the wife.The wife, from whom the husband had obtained a divorce after the assault and before the trial, was offered as a witness by the defendant, to prove how the difficulty occurred between the plaintiff and defendant, and the ill usage of the husband which led to it.The witness was held to be incompetent.“The question,” says McKinney, J., who delivers the opinion of the court, “is too plain to require either argument or authority.The former husband is a party to the suit.His interest is directly involved.And the main objects proposed in the examination of the former wife, are to show the abuse inflicted on her by her husband during the existence of the marital relation, and to justify or at least to palliate the battery committed upon him by the defendant in consequence of the alleged wrongs done her.If this were allowable there would be no stopping place, and in all cases, whether affecting the property, reputation, or even life of her former husband, she might be made a witness.”

These rulings were followed in Booker v. McAuley, 4 Heisk., 424.There, on a suit against the personal representatives of a trustee, to charge him with the trust assets, the widow of the trustee, who had no interest in the event of the suit, was offered to prove the payment of money to the husband as a part of the trust fund, the amount paid, that the husband handed her the money at the time, that it remained in her possession except a definite sum loaned to a person named, and that she handed the identical money to the defendants as the administrators of the husband.The court held that the testimony was properly excluded.“We conclude, therefore,” says Judge Freeman, after reviewing the previous decisions, “on high grounds of public policy, which demand to be upheld and maintained as subserving the general social interests of the community, that the wife was incompetent.”

The rule has been construed by the courts of New York to exclude the husband from being a witness in a suit by a wife's trustee against third persons, since the provisions of the Code of that State doing away with incompetency on the ground of interest in the event of the suit.Hasbrouk v. Vandervoost, 9 N. Y., 153.And seeBurrell v. Ball, 3 Sandf. Ch., 26;Snyder v. Snyder, 6 Binn., 483;Hopkins v. Smith, 7 J. J. Mar., 263.

In the meantime the Acts of 1868, ch. 75, and 1870, ch. 78, providing, with limited exception, that no person shall be incompetent to testify because he or she is a party to or interested in the issue tried, were enacted by the Legislature.Rev. Code, sec. 3813a, et seq.At the same session of the Legislature during which the last mentioned act was passed, it was also enacted that where the husband and wife sue or are sued jointly, the wife shall not be held incompetent to testify as to the matter in controversy “that transpired while she was a feme sole or before marriage, although the husband may have acquired an interest in the subject matter of the controversy by the marriage.”Rev. Code, sec.. 3813 f,1869, 19, 3.These acts came before this court for construction in Goodwin v. Nicklin., 6 Heisk., 256, and the East Tenn., ...