McCrary's Adm'r v. Rash's Adm'rMcCrary's Adm'r v. Rash's Adm'r
Sеction 3058 of the Code of 1876, being the act of March 2, 1875 (Pamph.'Acts, 252), is, in some respects, materially different from section 2704 of the Revised Code. Each declares that, as a general rule, being a party to the record, or interested in the issue tried, does not disqualify a witness in a civil cause. The exception found in sectiоn 2704, Revised Code, is in the following language : “In suits or proceedings by or against exeсutors or administrators (as to which a different rule is not made by the laws of this State), neither party shall be allowed to testify against the other, as to any transaction with, or statement by the testator or intestate, unless called to testify thereto by the оpposite party.” The meaning of the clause in parenthesis is, that this excеption applied to all such cases, unless some case should arise, fоr which the Code, in some other clause, made a different rule or provision. Thе act of March 2, 1875 (Code of 1876, § 3058), provides, “that neither party shall be allowed tо testify against the other, as to any transaction with, or statement by any deceased person, whose estate is interested in the result of such suit.” It will be readily seen thаt this enlarges the exception. In the former statute, the exclusion applied only when the “suit or proceeding was by or against an executor Or administrator,” аnd it was confined to “transactions with, and statements bv the testator or intestate.” Under the present statute, the exclusion applies to all classes of suits or рroceedings, provided the offer be to prove, by a party to the suit, a transaction with, or statement by some deceased person, whose estatе is interested in the result of, the suit. The first was confined to a testator or intestate, whose personal representative was, as such, a party to the suit, and to transactions with, and statements by such [deceased] testator or intestate. The latter includes transactions with, and statements by any deceased person, whose estate is interested in the result of the suit. The latter statute contains another exceptional clause not found in the former. It provides that parties to the suit shall not tes
The purpose of the exception, in each of thesе statutes, was to exclude the testimony of parties to the suit, when offered in their own behalf, to show transactions with, or statements by persons who have died, and cоnsequently can not confront, and, perchance, contradict such testimоny. It rests on the fear that personal interest will exercise an influence toо controlling, unless it is confronted by an adversary interest, having equal knowledge of thе facts. This exception has been uniformly upheld in its integrity, as a necessary restraint of abuses likely to grow out of the section of the Code we are considering. See Rupert v. Elston,
The amendment of the section under discussion, extending, as it does, the restrаints on parties testifying against decedents’ estates in adversary interest, furnishes an аdditional reason why we should not cripple this salutory exception, in its benificеnt operation. So, it has been held to apply to persons standing in the relаtion of beneficiaries, who, though not parties to the suit, are directly interested in the result.—McLemore v. Nuckolls,
Under the rule declared in the cases of McLemore v. Nuckolls, and Key v. Jones, supra, the witnesses, Bogers, Champion, and Almond McCrary, were incompetent to testify to transactions with, and statements by Bash, the deceased administrator ; and the Cirсuit Court did not err in excluding that part of the evidence.
The judgment is affirmed.