44 Kan. 523 | Kan. | 1890
The opinion of the court was delivered by
Mary F. Stout, as executrix of the last will and testament of Elizabeth Van Fleet, deceased, brought an
The third objection is, that the court erroneously permitted the executrix to testify to transactions and communications had personally by her with the deceased; but the record does not bear out this claim. The communication or letter referred to appears to have been written by Peter S. Stout, instead of the executrix.
The final objection is, the admission of the testimony of Peter S. Stout, who was the husband of the executrix. It is contended that it is in violation of § 323 of the code, which provides:
“The following persons shall be incompetent to testifyí . . . Third. Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint, interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterward.”
“As our statute has opened wide the door to all persons to be witnesses, without regard to their interest in the suit, excepting as affecting their credibility/ we ought to keep up the disqualification as to the wife being a witness on account of the interest of the husband, unless the plain provision of the law forbids any other conclusion.”
It was there held that the exception which precluded the husband or wife from testifying for or against each other should be confined strictly within the terms of the statute, and that it “ should only apply where the letter of the law makes the same indispensable.” Following this rule, it cannot be held that the husband or wife is incompetent as a witness in a case brought by or against the other in a representative capacity. If the rule insisted upon by the plaintiff in error obtained, it would exclude the wife as a witness when the husband as the attorney general or other prosecuting officer brought an action in his name in behalf of the state, or where he was a party as a receiver or sheriff, or in any other of the various representative capacities in which an action may be brought for or against him. The decisions of this court, following the spirit of the legislation of the state, have been in favor of lessening rather than extending the limitations as to the competency of husband and wife to testify for or against each other. (Ruth v. Ford, 9 Kas. 18; Furrow v. Chapin, 13 id. 107; Higbee v. McMillan, supra; The State v. Buffington,
From an examination of the record we are satisfied that no injustice was done to the plaintiff in error by the judgment that was given, and finding no prejudicial error, the judgment will be affirmed.