56 Barb. 54 | N.Y. Sup. Ct. | 1865
By the Court,
The action was brought to recover the value of certain moneys deposited in a savings bank, and of several promissory notes which the plaintiff alleged that Sarah G-oodenough, the deceased wife of the defendant, owned in her lifetime, and gave to the plaintiff in anticipation of death, and which she claimed were improperly withheld from her by the defendant, after the death of his said wife. The main questions on the trial were:
1st. Whether Sarah Goodenough was, in' her lifetime, the owner of the property in question, and if she was, then, 2d. Did she transfer it to the plaintiff by a gift, causa mortis ?
The "notes and evidences of the deposit were in a bureau, of which the defendant had the key’; and as he in his first answer denied all the allegations of the complaint, and in his second set forth that he was the husband of the deceased, and as such was entitled, at her death, to all her personal estate, subject to the payment’of her debts, &c.; that no administration had been granted upon her estate, and that her debts and funeral expenses had not been
On the trial the plaintiff was sworn as a witness in her own behalf, and testified that, in 1855, Sarah Goodenough received from the estate of her brother $300, and $200 from her father’s estate in 1856. She further testified that on the morning of the 21st of May, 1864, (four days before she died,) “ she commenced talking with me about her affairs; she said she supposed the defendant had told me that she did not wish I should come, but it was not so; she told me she had kept her property; that she had not used any of it except the interest.”
All the above evidence was objected to, in" time, by the defendant, as incompetent. The court allowed the testimony, subject to proof, to be given by the plaintiff, connecting it with, and showing, the gift; to which the defendant excepted; and the witness continued to testify, that “she said she had a certificate of $255, a bank certificate; she had a note against Judson Goodenough of $150, and one against Morris Goodenough of $10,” (being the property in question.)
It is now insisted, on the part of the defendant, that the declarations of the deceased were not competent evidence, against the defendant, to show that she was the owner of the demands.
If the defendant claimed the property in dispute solely as the husband of his deceased wife, such declarations, if proved by a competent witness, would doubtless be evidence against him, as well as others who should succeed to her rights as her representatives of next of kin; but the issue in this case, in substance, denies that she ever was the owner of the property, and claims that it at all times belonged to the defendant in his own right; and I think the rule of evidence is plain, he having the actual possession and control of it at the time, that her declarations, however proved, were not competent evidence against him.
Section 399 prohibits a party from being examined as a witness “ in his own behalf, in respect to any transaction or communication had personally, by said party, with a deceased person, against parties who are the executors, administrators, heirs at law, next of kin, &c., of such deceased person, where they have acquired title to the cause of action immediately from said deceased person.”
There can be no doubt that the defendant had a right to reduce to his possession all the personal property, including the choses in action belonging to his deceased wife at the time of her death; that he alone had the right to administer her estate, and to collect the debts due to her, and her personal estate belonged to him, subject only to the payment of her debts. He took it immediately from her. And if he is included in the words “next of kin,” in'section 399, then the plaintiff was an incompetent witness to prove the gift from the deceased to herself.
It must be conceded that, strictly and technically, the husband is not next of kin to his wife, nor is the wife next of kin to the husband; and yet it does not necessarily follow that section 399 does not include this case.
A thing may well be within the spirit of a statute, although not within the letter; or it may be within the
. On the other hand, where the statute is intended to enforce a clear moral obligation, or to preserve a common law right, it is enough if the case be within the spirit of the statute; as where the statute (2 R. S. 42) authorizes any creditor of a deceased person to recover his claims against the next of kin, &c., to whom any assets shall have been paid or distributed. It is held that a widow of the deceased, who has received her distributive portion of the estate, is included in the term next of Jcin, and may be sued by the creditor, for the recovery of his debt; and that that term includes all relatives of the deceased entitled to share in the assets of his estate. (Merchants’ Ins. Co. v. Hinman, 4 Abb. Pr. R. 312. S. C. 15 How. Pr. R. 182, and 13 Abb. Pr. R. 110.)
“ A wife cannot in general claim as next of kin of her husband, nor a husband as next of kin of his wife. But when there are circumstances in a will which induce a belief of an intention to include them under'this term, they will be so considered, though in the ordinary sense of the word they are not.” (2 Bouv. Law Dic. title Next of Kin. Hov. Pr. 288, 289. Myl. & K. 82.)
At common law, the party could not be a witness for himself, to prove any part of the issue, and the statute
Each portion of the testimony objected to was improperly admitted, and the judgment should be reversed and a new trial ordered, with costs to abide the event.
Mullin, Morgan, Bacon and Foster, Justices.]