66 Md. 530 | Md. | 1887
delivered the opinion of the Court.
We do not agree with the learned Judge of the Court below in holding that Mrs. Hawkins is not a competent
This clause of the statute has been before us for construction in several cases. In Wright vs. Gilbert, 51 Md., 157, it was held that the terms “contract or cause of action” as here used, mean the contract or cause of action in issue and on trial, and that the exception excludes only an original party to such contract, who is also a party to the suit, from testifying where the other original party to the contract is dead or insane. The sole purpose of the exception, say the Court in quoting the Massachusetts cases upon a similar provision in the statute of that State, is to exclude a party to the record from testifying in his own favor when the other party to the contract or' cause of action in issue is incapable of testifying' against him. The Court also refers with approval to the case’of Looker vs. Davis, 47 Missouri, 140, where it was said that the object and purpose of the proviso undoubtedly was “ to put the two parties to a suit upon terms of substantial equality in regard to the opportunity of giving testimony. The proposition may be taken as a general one, therefore, that where parties have contracted with each other, each may be supposed to have an equal knowledge of the transaction, and both, if living and . sane, are allowed to
The other terms “ or when an executor or administrator is a party to the suit, action or other proceeding,” do .not, in our opinion, mean that the mere fact that the personal representative of any deceased person is a party to the suit, makes every other party on both sides incompetent to testify on his own offer or upon the call of his co-plaintiff or co-defendant. If such a construction were to prevail it would render the Evidence Act of very little use in chancery suits, for in such cases the litigants are usually numerous, and it seldom happens, but that it becomes necessary to make the personal representatives of some one a party to the proceeding. It has never been held that the mere presence of any personal representative as a party to the action, works the broad disqualification of all the other parties contended for by the appellees, nor do we think the Legislature ever so intended. The executor or administrator referred to is, in our judgment, the executor or administrator of a deceased party to the contract or cause of action in issue and on trial; and the exclusion only extends to the other party to such contract, and who is also a necessary, and not a mere nominal party to the suit. And this, as it seems to us, is made more mani
Here the bill was filed by a trustee appointed by the Court to carry out the trusts contained in the will of Mrs. Ella Y. Davis, and the witness, Mrs. Hawkins, who was the sister of Mrs. Davis, was joined with the trustee as complainaut on account of some real or supposed interest in the trust property derived under that will. These two sisters had an only surviving brother, Joseph W. Mowell, who was the owner of an estate called “Glencoe,” upon which he had given a mortgage to Mr. Abell for §24,150, •dated the 20th of October, 1876, and payable in five years. The bill alleges that Mrs. Davis, at the request of her said brother, paid to Mr. Abell on the 17th of January, 1881, the sum of $14,650 in part payment of this mortgage, and then charges, 1st, that at the time of this payment it was understood and agreed between Mrs. Davis, and her brother, that the balance due on the mortgage should be paid by the former, and that the mortgage should be duly assigned to her; 2nd, that it was further agreed between the same parties that the aforesaid sum of $14,650 should be a charge upon the property embraced in the mortgage; and 3rd, that, said parties intended and agreed that this sum should be secured to Mrs. Davis by her brother, and that for the purpose of carrying out this agreement Mrs. Davis visited her brother at Glencoe soon after the 17th of January, 1881, but found him too sick to transact any business, and she herself soon thereafter became sick and •died on the 28th of February, 1881, leaving the will which
With her testimony in the case, we have no hesitation in holding, that the averments of the bill in regard to the agreement and understanding between Mrs. Davis and her brother are substantially proved. It is said, however, that no specific or definite agreement is stated in the bill, or proved even by the testimony of Mrs. Hawkins, that the agreement, whatever it w'as, was not in writing, and that there was no such part performance by Mrs. Davis as to warrant a decree for specific execution. But assuming, for the sake of the argument, that this is true, still the testimony of this witness shows conclusively, that Mrs. Davis, kind, generous and affectionate as she was to her brother, never made or intended to make an absolute gift to him, of this large sum of money, and that he never supposed it to be a gift. There is, in fact, not a particle of admissible testimony from any witness in the case to prove that this was a gift, and that it was not a gift, is not only shown by the preponderance of proof, but is supported by the inference to be drawn from the character of the transaction itself, the relation in which the parties stood to each other, and the circumstances under which the payment was made. Neither of them had children. The brother was. in bad health, had met with financial misfortune, was worried by the pressure of this heavy mortgage about to fall due, and was in danger of being turned out of house and home. The sister wrho was expecting to receive money from the redemption by the lessee of a ground rent she
But the defence of laches is relied on, and this is the remaining question to be considered. The bill was filed on the 4th of September, 1885, more than four years after the death of Mrs. Davis, but less than that period after the death of her brother, and within three months after the death of his widow. Authorities upon the subject of laches and lapse of time are almost innumerable, but the Courts have wisely abstained from attempting to lay down any general or inflexible rule to govern all cases. As was said in Glenn vs. Hebb, 17 Md., 260, when questions of this kind arise in Courts of equity, it is a sound maxim that each case is to be determined according to its own facts. And this must be, for it is obvious that while it would be just and equitable to sustain such a defence in one case, and under one state of circumstances, it would work gross wrong and injustice to sustain it in another where the circumstances are entirely different. In the present case Mr. Keech, the executor of Mrs. Davis, might perhaps have asserted the claim, but it seems he settled up her personal estate in the Orphans’ Court without doing so, and it is but justice to him to say that he has stated in argument that he had no knowledge whatever of the facts upon which the claim is founded. It is also true that Mr. Stewart, the trustee first appointed by the Court, in the place of the trustee named in the will of Mrs. Davis, and who declined to act, might have filed a bill to enforce the claim, but there is nothing to show that during his administration of the trust, he had knowledge of the facts. And who are the parties beneficially interested ? They
It follows that the decree dismissing the bill must be reversed, and the cause remanded in order that a decree
Decree reversed, and cause remanded.