40 W. Va. 169 | W. Va. | 1895
This was a chancery suit in the Circuit Court of Ohio county by the administrators of Samuel J. Crothers, deceased, against L. M. Crothers, to set aside a transfer purporting to-have been .made by said decedent to‘> L. M. Crothers of certi-icates for ten thousand dollars stock of the Bank of the Ohio. Valley, at Wheeling, and, the bill having been dismissed,, the administrators appeal.
The grounds on which the plaintiffs base their prayer for the annulment of such transfer of stock are undue influence,, fraudulent representation, and the mental imbecility, from old age, of Samuel J. Crothers, and the charge that the written transfer is a forgery.
Without giving the evidence, I may dismiss the first three-grounds as unsusfained by it; or, as would be more appropriate to say, there is no evidence to detail as to- those grounds.
As to the allegation of forgery. The detail of evidence on this point could answer no purpose for future cases. The
Mr. Dorrance states that the old gentleman stated to him that he had given L. M. Crothers this stock to make up a lossi to him in the sale of a farm mentioned below. Now, this ad
I think the Circuit Court was bound on the evidence to decide the case as it did, and find the transfer genuine. This
As said above, the evidence of Lizzie Crothers and Mrs. Dorance makes it clear, if we believe them, that the transfer is not a forgery. But it is urged that they are incompetent as witnesses. They are not incompetent to give the evidence they gave at common law, as they are neither parties nor interested, because they give evidence to support the transfer, which takes the property away from distribution, in which they should share, and forever excludes them from any share in it. It is well settled that where a witness testifies against his interest, the rule that interest disqualifies does not apply. 1 Greenl. Ev. § 410. So the common law does not debar these witnesses. Then does the statute, section 23 chapter' 130, Code? It does not. Its object was to widen, not to narrow, the competency of witnesses — to make those competent not competent before, and not to create or enact incompetency. It is often important to remember this in construing this statute so' radically innovating on the law of •evidence. Gilmer v. Baker, 24 W. Va. 84; Page v. Whidden, 59 N. H. 507. Its first clause is a revolution and reversal of the common-law rule excluding.a witness because a party to the suit or interested in its event. It makes persons, so far as their being parties or interested would exclude them, competent. But the second clause contains exceptions to this sweeping declaration of competency, because it declares that no party to a suit, or any one interested in its event, or any person from, through or under whom such party or interested person derives any interest by assignment or otherwise, shall be examined, in regard to any personal transaction or communication between such person and a person deceased, insane, or lunatic, against the executor, administrator, heir, distributee, assignee, legatee, devisee or survivor of one deceased, or the assignee or committee of an insane person. This exception originates no new incompetency, but only
Where the statute is a mere proviso or saving clause in the act abolishing the common-law disqualification of interest, it does not make incompetent such testimony as would he competent at common-law. Abb. Tr. Ev. 61. So, these two female witnesses, being competent by common law, are not made incompetent by the statute. In Robinson v. Robinson, 20 S. C. 567, 573, this view of such a statute is held, and that case is otherwise apposite in this case, as it holds that, in an action by an administrator to settle an estate, two distribu-tees may prove the execution of a note by'the deceased, with them as sureties, because testifying* against their interest.
The following theory is relied upon by counsel as a reason for rejecting the evidence of Lizzie Orothers and Mrs. Dor-rance: A month before the transfer of bank stock, Samuel J. ■Orothers conveyed to L: M. Orothers a farm for the consider.ation of fifteen thousand dollars, and the purchaser executed to Lizzie Orothers a note for ten thousand dollars, and to Mrs. Dorrance one for five thousand dollars, making up the fifteen thousand dollars. Those notes were gifts by the father to his daughters, and it is urged that this and the bank stock transfer are one common transaction, though a month apart, by which L. M. Orothers, Lizzie Orothers and Mrs. Dorrance stripped their old father of substantially all his remaining estate, to the injury of the remaining four children, and that we ought to treat both as one transaction, and thus make Lizzie Orothers and Mrs. Dorrance interested to sustain the transfer of bank stock, and thus exclude them as witnesses. For argument, say that they feel an interest in repelling the charge made in common against the deed from the father to his son L. M. Orothers, the gift of said purchase money to the ■daughters, and the transfer of the bank stock to L. M. Croth-ers; that the old man was imbecile, subjected to undue influence and misrepresentation — still the interest they feel is •only a feeling, a bias going to their credit, and that interest, viewed in the strongest light, is only an interest in the ques
To exclude a witness, he must be interested in favor of the party calling him. Sims v. Givan, 2 Blackf. 461; Kennedy v. Barnett, 1 Bibb, 154. What benefit can flow to these witnesses from L. M. Crother’s success? So far as actual interest, in a legal point of view is concerned, it is against Mm.
As pertinent, not to the point of competency, but to the grounds for the charge of undue influence and confederation of these three parties, and going to repel them, I will add that the gift to Lizzie was because she was a maiden lady forty six years of age, broken in health and helpless, and had spent many years living with and caring for her aged father and mother. All the other children, except Mrs. Dorrance, who was poor, were well situated in the world and independent. Why should she not be provided for? The provision for her came, not from undue influence, fraud and corruption, but from the strongest emotions of the father’s heart to provide for the woeful years of his daughter, when both father and mother would be gone. The old man’s heart was beating faintly under the weight of years.and disease, but its pulsations were strong to shield a dependent daughter from the chills of biting poverty Cold would have been his heart had he departed without doing this high duty! In this act a judge can not see fraud and vice, but noble action.
Decree affirmed.