Opinion,
This action was brought by George S. Boone against John R. Bitner, executor of the last will and testament of James Boone, deceased, to recover for personal services rendered to the decedent in his lifetime. At the trial of the cause the plaintiff called his wife, Mrs. Annie Boone, who was permitted to testify to matters occurring in the lifetime of the decedent. Her competency having been objected to, and an exception taken, the defendant’s counsel has assigned this action of the court for error. The cause having been tried since the passage of the act of May 23, 1887, P. L. 158, the question of her competency must be determined upon a construction of that act.
It was a general rule at common law that when the wife was interested, the husband was not a competent witness to testify, either for or against her interest. The converse of this rule was equally true, and the wife was not competent to testify in her husband’s behalf; nor could she be called to testify against him: Pipher v. Lodge, 16 S. & R. 214; Pringle v. Pringle, 59 Pa. 283. By the first section of the act of 1869, however, it was provided that “ no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding; provided, that this act shall not alter the law as now declared, etc., so as to allow husband and wife to testify against each other, ” etc. Whilst by this provision a wife remained incompetent as a witness to testify against her husband, she was rendered competent to testify for him: Yeager v. Weaver, 64 Pa. 425; Ballentine v. White, 77 Pa. 20. But by the same section it was further provided, that “ this act shall not apply to actions by or against executors, administrators, or guardians, nor where the assignor of the thing or contract in action may be dead, except, ” etc. By this second clause of the proviso, the competency of the wife to testify in favor of her husband was
The act of May 23, 1887, provides that no liability for costs, nor right of compensation, nor any interest in the question, “ nor any other interest or policy of the law,” shall, in any civil proceeding, etc., render any person incompetent as a witness, except as provided in section five of the same act. Referring to section five we find at clause £5) that neither husband nor wife is competent to testify to confidential communications made to the other, unless the privilege is waived; and at clause (a) that neither is competent to testify against the other except in certain cases, which are specified. From this it is clear that the husband and wife may testify each in favor, but not against the other, as heretofore, excepting as stated in clause (5). In clause (e), however, it is provided that where any party to a thing or contract in action is dead, etc., and his right thereto or therein has passed, either by his own act or the act of the law, to a party on the record who represents his interest in the subject in controversy, the surviving or remaining party to such thing or contract shall not, nor shall any other person whose interest shall be adverse to the said right of said deceased, be a competent witness to any matter occurring before the death of the decedent unless, etc. Under this clause it is clear that George S. Boone himself would not be competent to testify to any matter occurring in the lifetime of James Boone, deceased. Fie is not only the surviving or remaining party to the thing or contract in action, but he is a person whose interest is adverse to the decedent’s right. His wife was not a party to the thing or contract in action, and was not rendered incompetent on that ground, but was she a person whose interest is adverse within the meaning of the act of 1887 ? Can she be considered a competent witness, when upon the ground of interest her husband is incompetent?
Mr. Greenleaf, in his Law of Evidence, § 334, says that the
The judgment is reversed, and a venire facias de novo awarded.