71 N.C. 322 | N.C. | 1874
As Mrs. Brooks is not a party to this action, and has no interest to be effected by the event of the same, she stands like any other disinterested person, and is a competent witness to prove any transaction between the testator and her husband, J. L. Brooks, the defendant, unless there be something in the marriage relation which renders her incompetent.
It is true that the defendant alleges, that the money, collected by him from Cunningham, was an advancement, by the testator, to himself and his wife, the witness, Martha Brooks. But it must be remembered that the defendant collected this money in 1867, before the adoption of our present Constitution, which ordains that the property of any female shall be and remain the sole and separate estate and property of such female, &c., und that consequently the legal effect of the alleged advancement, if there was one, was to give the money to the husband aloneand that, so far as the wife’s estate is con
Indeed, as there is a will, which provides for an equal distribution of the estate among all the children of the testator, it would seem that so far as Mrs. Brooks’ own separate estate is concerned, her interest might be the other way. But is there anything in the marriage relation whieh renders her incompetent ? The old idea, that the legal existance of the wife is merged into that of the husband, belongs to the past in North Carolina, so far at least as her rights of property are concerned. And we have held, in at least 'two cases, that husbands and wives are competent and compellable to give evidence for or against each other, save only in the peculiar cases, excepted by the statute.
Rice v. Keith, 63 N. C., 319; Barringer v. Barringer, 69 N. C., 179.
We think the testimony of Mrs. Brooks should have gone to the j ury, to be weighed by them, and received for what it was worth.
Let it be certified that there is error.
Pbb Cueiam. Venire de novo.
