Stevens v. Joyal

48 Vt. 291 | Vt. | 1876

The opinion of the court was delivered by

Wheeler, J.

The appellee has made a point in this case, that the appellant, has not sufficient interest to entitle him to take an appeal from the decision of the Probate Court, and be heard upon it in the County Court. But that objection does not appear to have been taken until after issue had been joined, and the trial of it begun ; and whatever consideration it might have been entitled to if it had been made on the entry of the appeal in the County Court, or within the time allowed for filing dilatory pleas and motions there, at the time it was made, the court was not bound to consider it, and there was no error in not sustaining it.

The appellant has made three other questions upon his exceptions in this court. The issue on trial was, whether or not the ap-pellee was the widow of the intestate. The appellant claimed that she was not, because she had a former husband, named Edwards, living at the time of her alleged marriage with the intestate, which, if true, would make her marriage with him void.

In support of this claim, the appellant appears to have put in evidence without objection, tending to show that the intestate introduced a man to one Bundy, his brother-in-law, as Edwards, her husband, at Rutland, after her alleged marriage to the intestate ; and then he offered to show that afterwards, the intestate told his sister, Mrs. Bundy, that Edwards, the husband, had been at Rutland, and if she did not believe it to ask Bundy, which evidence, on objection, was excluded, and he claimed that there was error in this exclusion. But this statement was not a part of any transaction that it would characterize, nor was it the admission of any fact that can in any way be said to have been against the interest or title of the intestate, under whom the appellee claims as widow, for it was not anything that could affect his right or title in any way, but it was a mere naked statement of his, as offered, no more admissible than if made by any other person, and could not on any ground be properly admitted.

Another question is as to the exclusion of a part of the deposition qf Moore. The material part excluded was as to what the parents of the intestate told the deponent about the past relations between the intestate and the appellee. Those statements were also mere narratives given by the parents of past transactions, and although of more moral force because made by those interested, and likely to know about their truth or falsity, were still mere hearsay, and were properly excluded as such.

The other and most important question made is as to the competency of the appellant as a witness upon the trial of her right to the estate. She claimed to be the widqw, and to bo entitled to the share of a widow. The issue on trial was whether or not she was the widow. On this issue there was no question between her and the intestate, or his personal representatives, concerning his estate. He was dead, and could not be a party or interested, and all claims against the estate had been adjusted and settled, and the amount and situation of it ascertained, and the only question remaining was between her and the heirs-at-law, as to which should have it. On this question, the existence of a marriage contract between her and the intestate would come in question, and would in some remote sense be in issue and on trial, but not directly so.

The issue on trial was as to her status in the proceedings which were proceedings in rem, in reality, and involved her relations to the living' heirs directly, and to the deceased intestate only incidentally. Downs v. Belden, 46 Vt. 674. If a person should claim to be brother in the distribution of an estate, and other heirs should deny his brotherhood, and claim he was spurious, the marriage contract between the father and mother on the trial of the question, would come in issue to some extent, but no one would probably claim that if the father was dead the mother could not testify, nor vice versa. So here, the marriage contract was in issue, but only collaterally so, and the death of one party to it would not exclude the testimony of the other, within the meaning of the statute.

Judgment affirmed, to be certified to the Probate Court.