| Ill. | Jan 15, 1869
delivered the opinion of the Court:
This is an appeal from the Circuit Court of Hancock county, brought there by appeal from a justice of the peace, where a judgment was recovered in favor of appellees against appellant, for $78.65 and costs. In the circuit court the judgment was for $80.66, and costs.
To reverse this judgment, the record is brought to this court by appeal.
Appellant makes several points, some of which will be noticed.
The first is, that the divorced wife of the defendant was not a competent witness to charge him with this debt.
The transaction, such as it was, occurred in 1850, after the marriage of the witness with the defendant, and the facts stated by her amounted to a contract made with her by her husband.
On long established principles, the wife was not a competent witness, as this court held in Waddams v. Humphrey et al. 22 Ill. 661" date_filed="1859-04-15" court="Ill." case_name="Waddams v. Humphrey">22 Ill. 661. In 2 Stark, on Ev. 549, it is said, the rule seems to be universal, that when either husband or wife is a party to an action, the other is incompetent as a witness, in either civil or criminal proceedings, citing, in note, various decisions by the courts of this country. Public policy seems to be the ground on which the exclusion is based, and the principle is further preserved by adhering to the rule even after the marriage tie has been dissolved by the death of one of the parties, or by a divorce for adultery. 1 Greenl. Ev. sec. 337; Stein v Bowman, 13 Pet., 209" date_filed="1839-02-18" court="SCOTUS" case_name="Stein v. Bowman">13 Peters, 209. It may be affirmed as an inflexible rule, where the husband is a party, the wife cannot be sworn either for or against him ; not for him, because their interest is one, and she would be expected to favor him; not against him, because it would be likely to promote dissension. Fitch v. Hill et al. 11 Mass. 286" date_filed="1814-09-15" court="Mass." case_name="Fitch v. Hill">11 Mass. 286; Griffin v. Brown, 2 Pick. 304.
The testimony of Mrs. Bruegger should have been excluded.
But there was another piece of testimony, offered by the defendant, which the court ruled out—that was, the inventory of the estate of Auer, from which the money in suit was alleged to have cozne. The witness was his widow and adzninistratrix, and that inventory was important, as going to weaken, if not destroy, her testimony, for it showed that all the availa.ble assets of the estate did not exceed $242 and some cents, of which the widow retained as her own portion, and which was set off to her by the appraisers, articles of the value of $143, leaving but about $70 for distribution among the heirs at law, the plaintiffs in the case.
The witness testified, however, that she sold a house owned by her deceased husband, in Cairo, for $285, $85 of which she had appropz-iated to her own use, and the money committed to her husband was the remaining $200. This house being on land not belonging to the owner of the house, was a chattel, which could be sold and removed from the ground ; it was assets in her hands as administratrix, and did not belong to the children until an order of court for distribution had been obtained. The children had no right to claim it, either jointly or severally, and if the administratrix, as she testifies she did, gave it to her husband, on his promise to pay it to the children when the youngest became twenty-one years of age, that promise was not such as would authorize the children to sue and recover upon it, in an action at law. No promise was made to them nor to any one of them. The promise, if any, was made to the mother and administratrix, and the remedy of the children would be against her, either by obtaining an order of court to compel distribution, or by action against her for a devastavit. The legal interest in this money can not be said to have been in the children. It was assets of an estate not settled, and as such, the legal interest was in the administratrix, for purposes of distribution.
Bor the reasons given the judgment is reversed.
Judgment reversed,.