| Vt. | Jan 15, 1892
The opinion of the court was delivered by
The fact that the contestant is a legatee under the will does not render- him incompetent as a witness. The ground and reason for this holding will be found fully set forth in the Foster will case, ante 233 and therefore they will not be-stated here.
The court properly limited the contestant’s testimony to n on-confidential matters and to matters not affecting his wife’s character. That is the rule early adopted in this State, and uniformly adhered to in practice. Smith v. Potter, 27 Vt. 304" court="Vt." date_filed="1855-02-15" href="https://app.midpage.ai/document/smith-v-potter-6575505?utm_source=webapp" opinion_id="6575505">27 Vt. 304. And it makes no difference that had his wife been living the contestant could not have been a witness against her; for then he would have been incompetent on the ground of public policy; but
Nor did the contestant transcend the limit prescribed, by testifying to an agreement or understanding between him and his wife relative to their respective interests in the real estate devised by her will. That was not a matter in which she treated with him in marital confidence when they were alone, but was purely a business transaction, had and done between them in the presence of witnesses, evidently called as such, which precludes the idea of marital confidence.
It is not claimed that the other matters to which he testified were violations of such confidence.
The testimony was relevant to the issue of want of testamentary capacity and to the issue of undue influence ; for if the testatrix undertook to devise property not her own, it tended to show mental weakness, as not knowing what property she had nor understanding the true relation she sustained to her husband in respect to their property rights. In Bellows v. Sowles, 59 Vt. 63" court="Vt." date_filed="1886-10-15" href="https://app.midpage.ai/document/bellows-v-sowles-6582895?utm_source=webapp" opinion_id="6582895">59 Vt. 63, it was held that evidence that the testator undertook to devise property not his 'own, tended to show undue influence.
The agreement or understanding to which the contestant testified was only collaterally in issue, so the death of his wife did not render him incompetent by statute to testify to it. Morse v. Low, 44 Vt. 561.
Judgment affirmed cmd to be certified.