Melvin v. Melvin

6 Md. 541 | Md. | 1854

Tuck, J.,

delivered the opinion of this court.

At the trial of this cause, the appellant objected to the competency of a witness offered by the plaintiff, on the ground of interest in the event of the suit, which objection was overruled and the witness admitted to testify for the plaintiff as competent. It do.es not appear that the evidence was material to the plaintiff, but in disposing of the case we will assume, that he did testify beneficially to the plaintiff, without deciding (he points made upon the form of the exception.

The .competency of witnesses has been much discussed. Neither judges nor elementary writers have agreed, in terms, in defining the test by which the disqualifying interest is to be ascertained. In adopting, and, in some cases, perhaps, extending too far, the policy approved by Lord Mansfield, in Walton vs. Shelly, 1 Term Rep., 300, of disregarding the subtle grounds on which the old cases were decided, and letting the objection go to the credit rather than the competency of the witness, the use of different words in different cases has supplied arguments for a supposed conflict of opinion among judges, when, if considered with reference to the connection in which they are employed, they will be found to convey the same meaning.

We have examined the authorities, and find that the rules of law on this question are so fully stated by C. J. Buchanan, in Watts vs. Garrett, 3 G. & J., 355, that the present case must be governed by it. It is there said: “ When the competency of a witness is objected to on the ground of interest, the interest should appear. It should be seen by the court, in order that it may be enabled to determine its character, and whether it be such as to amount to a disqualification. It should not rest in mere conjecture or speculation, but should be shown to exist and to be certain and direct, and not possible only. For the bare possibility of an action being brought against the witness furnishes no objection to his competency. And where the interest is of a doubtful character, the objection goes to the credit and not to the competency of the witness.” So, also, the witness must be shown to be certainly, and not prima facie and probably, interested, as where the brother-in-law and sister of a testator were offered to prove the execution of his will, it was held that they were competent, there being no evidence of his having left no children. Deakins vs. Hollis, 7 G. & J., 311. According to Prof. Greenleaf, vol. 1, sec. 390, the true test is, that “the witness will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action; it must be a present, certain and vested interest, and not uncertain, remote or contingent;” — and, at sec. 3S6, that “it must be legal, certain and immediate, however minute, either in the event of the suit or in the record.” This doctrine is sustained by the cases referred to, and as to the test suggested, especially by Buller, J., in Bent vs. Baker, 3 Term Rep., 27, and Van Nuys vs. Terhune, 3 Johns. Cases, 82.

From the numerous decisions on this “perplexed question,” we adduce the opinions of Lord Denman and C. J. Gibson, to show the interpretation placed by them on the same and similar expressions with those to be found in the Maryland decisions. In Shipton vs. Thornton, 9 A. & E., 314, it was held, that the objector must show the interest with certainty and clearness, and that it is not enough to give evidence of circumstances from which such interest is a probable inference. Under such a state of case, the testimony should go to the jury, to be weighed by the considerations alleged against it. C. J. Gibson, in Bennett vs. Hethington, 16 Seargt. & Rawle., 195, ruled, that no matter how powerfully the witness might be operated on by having a similar case with the one under trial, although he might expect a benefit from the event, he would be competent, “unless implicated in the legal consequences of the judgment,” by which he meant, “those which are fixed, certain and actual, and by which an advantage, not depending on a contingency, is to be gained or lost.”

It is unnecessary to review the cases cited upon the law of trusts and powers, because, conceding that the bequest to the wife created a trust, according to the doctrines of these decisions, the interest of the witness, if any, does not appear to be of the existing, certain and direct character in the result of the suit, required to exclude a witness, according to the Maryland cases; nor could he have gained anything by the direct legal operation and effect of the judgment, according to the test in Greenleaf; nor have derived any advantage from the plaintiff’s recovery, clear, fixed, certain and actual, and not depending on a contingency, as ruled by C. J. Gibson and Lord Denman.

If the mother were dead at the time of trial, without having executed the power of appointment, that fact should have appeared. We must assume that she was alive, and, if so, the supposed interest of the witness depended on more than one contingency. He did not sustain towards his father’s estate the character of distributee, or residuary legatee, entitled to an undivided share of a surplus of which the property in contest would, if recovered, form a part. He had not, nor had any of the children, an interest in any particular chattel left to the mother. Although, under the power, if executed, ] she must have given a part to each, she might have given to ' each any part she pleased, provided it was not an illusory portion, and was under no obligation to give to the witness any of the property in dispute. It was a matter of discretion with her to give hina that or something else, and whatever her intention might be, it was liable to be changed, according to the circumstances in which she might find herself placed with reference to her children and their station in life.

It is true that if the plaintiff recovered, the estate over which the power was to be exercised would be increased, but it does not follow, as a legal consequence of the judgment, that the share of the witness would be enlarged, as in the case of a distributee or residuary legatee. After the recovery the witness had no greater legal interest in the property than he had before, whatever his chances or the probabilities may have been. A possible interest will not disqualify, as we have seen; nor will a mere probability of benefit, where there is no legal right or interest in the fund in controversy. Bent vs. Baker, Smith’s Lead. Cases, 44. Law Lib., 64. As far as this particular property is concerned, the witness sustained towards his mother, and the will of his father, no better relation than that of any child called to testify in behalf of his parent. The relationship and the expectations of the witness do not disqualify him, no matter how strong the bias under which he may swear, although he cannot help knowing, and too often feels, that a verdict in accordance with his testimony will increase his share of the estate, if his parent die intestate, and that he will be able to give more to' each of his children if he should make a will.

Whether the children of the testator would, in the absence of an appointment by the mother, take under the supposed trust created by the will, or as distributees of an undisposed of residue, appears to be immaterial to the present question, since, according to the cases- cited, the estate, if vested, is subject to be divested and defeated by the exercise of the power of appointment. And,- in view of the reasons on which the rules of evidence governing questions of this kind are founded, that cannot be considered a certain, direct, existing interest in property, which the witness does not at present, and may never enjoy, except at the will and discretion of another person, whom he may or may not survive.

Judgment affirmed.