Heft v. Ogle

127 Pa. 244 | Pa. | 1889

Opinion,

Mr. Justice Sterrett :

This suit was brought by Frank E. Ogle, administrator of Mary F. Ogle, deceased, against Jacob D. Heft, who survived Harry S. Ogle, late partners as Heft & Ogle, to recover money alleged to have been loaned to said firm by plaintiff’s intestate, Mary F. Ogle, who died leaving, as her only heirs-at-law, four children, viz., Maria S., Harry S. (deceased member of Heft & Ogle), Frank E. (the administrator), and Caroline Ogle.

On the trial, plaintiff below called his sister, Maria S. Ogle, to substantiate the claim in suit. The witness being objected to as incompetent, he proved and put in evidence a paper, signed and sealed by her, wherein she absolutely releases, assigns and transfers to her brother, Frank E. Ogle, individually, all her “ right, title, and interest of whatsoever kind, either in law or equity, of, in and to any sum-or sums of money which may be recovered or which may result from ” this suit, and discharges “ him from all liability or accountability.....in any form whatever, for any sum or sums of money which may be recovered in said action.”- The witness also testified, on her voir dire, that there was no other agreement between herself and her brother, and that she then had no interest in the fund. The objection was overruled, and bill sealed for defendant below.

The question thus presented in the first specification is, whether the learned judge erred in ruling as he did. We are of opinion that he did not. The witness was not a party to the record. She was neither the owner nor the assignor of the claim in suit; nor could she, individually, in her own right, ever have been plaintiff in an action to recover the same. She was not a party in interest, because, prior to suit brought, she absolutely released and transferred to her brother, individually, all the interest she ever had or could have in the amount that might be recovered. She was therefore competent to testify, and no policy of law excluded her. On the contrary, the policy of the law is rather to favor the admission of witnesses who are divested of all interest. Whenever it is practicable to do so, the tendency of modem legislation, as well as judicial decision, is to let questions of policy, interest, etc., go to the credibility, rather than to the competency of witnesses.

On principle as well as authority, it ought to be considered settled that in an action by an executor or administrator, based on a claim in favor of the estate he represents, a legatee or distributee who has parted with his interest, either by release, payment, or assignment, is a competent witness for plaintiff, unless there is some ground of exclusion other than the fact that he is a legatee or distributee, and as such was previously-interested in the result of the suit: 1 Greenl. Ev., §§ 419, 430 ; Miller on Witnesses, 58 ; Scott v. Lloyd, 12 Pet. 145 ; Gebhart v. Shindle, 15 S. & R. 235 ; Dellone v. Rehmer, 4 W. 9 ; Commonwealth v. Ohio & P. R. Co., 1 Gr. 348 ; Cornell v. Vanartsdalen, 4 Pa. 364 ; Carter v. Trueman, 7 Pa. 315 ; Steininger v. Hoch, 42 Pa. 432 ; Forrester v. Torrence, 64 Pa. 29 ; Brant v. Dennison, 3 East’n R. 9 ; s. c., 1 Cent. R. 400.

In some of our cases there is more or less confusion of thought, arising from the failure to properly distinguish those of the class to which the one now before us belongs, from cases in which the proffered witness was either actually or substantially a party so the suit, or in which he was the assignor of the thing or contract in action, a party to a negotiable instrument, or otherwise incompetent on the ground of public policy. In Haus v. Palmer, 21 Pa. 296 ; Montgomery v. Grant, 57 Pa. 243 ; Grayson’s App., 5 Pa. 395 ; Bailey v. Knapp, 19 Pa. 193 ; Hatz v. Snyder, 26 Pa. 511 ; Fross’s App., 105 Pa. 258, 266, and kindred cases, witnesses were excluded for one or other of the reasons above stated. Some of those grounds of exclusion are now greatly restricted by legislation of comparatively recent date.

In Commonwealth v. Ohio & P. R. Co., supra, Mr. Justice Black notices the- distinction between an interest that is collateral and one that is direct, as follows : “ When the interest of the witness is collateral, his competency may be restored by a release or transfer of it. The rule in Post v. Avery applies only to persons who have assigned choses in action on which the recovery would have been for their own use, if no assignment had been made. Its object is to prevent a party from transforming himself into a witness by the magic of a bit of paper. It forbids one who assigns a claim to sell his oath along with it. But a person who has a merely incidental interest in the result, an interest which arises entirely out of the fact that the record may be evidence for or against him in some other action, may divest himself of such interest, and if he does so at any time before he is offered as a witness, his testimony must be received. For instance, a stockholder in a corporation may transfer his stock and become a witness for the company; a legatee may dispose of his interest in the estate and testify for the executors; an attorney who has a contingent fee may release it and give evidence in favor of his client. The rule in question is not leveled against interested witnesses, but is founded in the policy of stopping a disinterested party from testifying in favor of one who sues in his right.”

Brant v. Dennison, supra, was an action of ejectment against a mortgagor by the administrators of the mortgagee who died intestate, unmarried and without issue- On the trial, a niece and heir-at-law of the intestate, and wife of one of the administrators, was called by them to sustain the mortgage on which the action was based. Being objected to as incompetent, because she was the wife of one of the plaintiffs and also a distributee of the estate represented in part by her husband, and therefore interested, it was shown that she had previously executed and delivered to a third party an assignment of all her interest in the mortgage in controversy ; and on the authority of Carter v. Trueman, Steininger v. Hoch, and kindred cases, it was held that inasmuch as she was not a party to the suit, either actually or substantially, and her interest as distributee, so far as the claim in suit was concerned, having been divested by the assignment, she was a competent witness. In principle, that case is not essentially different from the one under consideration. The first specification of error is not sustained.

There was no error in rejecting the offer of evidence recited in the second and last specification.

Judgment affirmed.