30 Mo. App. 309 | Mo. Ct. App. | 1888
delivered the opinion of the court.
Mrs. Hoyt filed her petition in the probate court of Shelby county, claiming one-half of the personal estate of her deceased husband, Moulton Hoyt, under the provisions of section 2189, Revised Statutes. The only defence was, that she was barred of her right to this share in the' personal estate of her husband under the provisions of section 2204, Revised Statutes, by reason of having voluntarily left her husband and continued with an adulterer. On appeal to the circuit court the cause was tried before the judge sitting as a jury, and there was a verdict and judgment for the defendants. From this judgment Mrs. Hoyt prosecuted a writ of error to this court, and such proceedings were had in this court, that the judgment was reversed and the cause remanded to the circuit court for further proceedings. In the opinion of this court (21 Mo. App. 235), it was held that the share in the personal estate of her deceased husband claimed by Mrs. Hoyt is “dower” within the meaning of section 2204, Revised Statutes, which bars jointure and dower in cases where the wife has voluntarily left her husband and continued with an adulterer. This
The errors assigned on the record relate to the rulings of the court in admitting Mrs. Hoyt to testify as a witness at all, and also in allowing her to testify to
I. The first ground on which the competency of Mrs. Hoyt as a witness is objected to is, that she is a party to the cause of action, and that one of the original parties thereto, to-wit, her late husband, Moulton Hoyt, is dead ; wherefore it is argued she is excluded by the terms of section 4010, Revised Statutes. This ground of objection is, in our opinion, too strained to require .much discussion. No cause of action such as that upon which the objection proceeds existed while her husband was alive. The cause of action being a right to a distributive portion of his estate after his death and after the satisfaction of the demands of creditors, did hot arise until the happening of these two events. Her deceased husband is in no sense one of the original parties to the cause of action within the meaning of the statute; but, instead of claiming against him, she is claiming under him. In this respect her position is entirely different from that of a creditor suing to establish a contested demand against the estate of a deceased person.
II. The next ground of objection to the competency of Mrs. Hoyt as a witness in the case is grounded upon the succeeding clause of section 4010, Revised Statutes, which recites that, “ where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless, the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator.” In order to bring the case within the intendment of this provision, there must be a proceeding inter partes in which the executor or administrator is an adversary party on one side and the party tendered as a witness is an adversary party on the other side. Something more is required than the mere presence of the executor or administrator as a party to the record. Certainly he is a necessary party,
III. But this leaves untouched the third ground of objection, which goes only to some of her testimony. The clauses of the statute which we have been considering relate entirely to exclusion on the ground of interest. The one which we are about to consider (Rev. Stat., sec. 4014) relates to a ground of exclusion founded in the public policy of closing the mouth of a married woman or widow from testifying as to admissions or conversations of her husband, whether made to herself or to third
“The court declares the law to be, that the plaintiff:’s sworn rehearsals of the alleged statements of Moulton Hoyt are not testimony herein and nowise admissible in evidence. They are simply volunteer remarks of the witness, not a part of her testimony, but unlawfully interpolated therein, and nowise to- be considered.”
We must, therefore,, conclude that the learned judge did not consider these statements in making his finding, especially as it was supported by other substantial evidence in the case. Had the case been tried before a jury, the conduct of the witness in rehearsing these statements, contrary to the rulings of the court;, might-have been presumed to have wrought such prejudice in the minds of the jury as could not be cured by an instruction directing them not to consider the statements ; but we cannot suppose such to have been the case where the issues of fact were tried by the judge, and, therefore, we must hold that this assignment of error is not well taken
It results that the judgment must be affirmed. It is-so ordered.