Whitehead v. Kirk

Cook, J.

delivered the opinion of the court.

W. J. Kirk died on the 30th day of November, 1911, childless, leaving his widow, L. Gr. Kirk, appellee here, his sole heir at law. On the 25th day of February, 1909, the deceased made a will devising all of his property to his three sisters, who are the appellants in this case. When this will was offered for probate, Mrs. Kirk, the widow, filed a caveat, protesting against the probate of the will because same was not executed in the manner and form required by law, because at the date of the will testator was not of sound mind and body, and was not capable of making a will, and because the execution of the will was obtained by undue influence of the beneficiaries thereof. An issue devisavit vel non was made up, and a jury impaneled to try the issue returned a verdict in favor of the contestant.

At tlie trial, all of the grounds of contest seem to have been abandoned, save the one involving the testamentary capacity of the testator. The testimony of Mrs. Kirk, the wife of testator, formed a very material part of the evidence to establish the insanity of her deceased husband, all of which was objected to by appellants, upon two grounds, viz.: First. Because the wife was incompetent to testify concerning' the acts and words of her husband, done and said under the protection of confidential communication between husband and wife. Second. Because the testimony of the wife was to establish her own claim to the estate of the deceased, which originated during the lifetime of the deceased.

The testimony of Mrs. Kirk recited in full the most intimate relations between herself and her deceased husband from their marriage to his death. She told about his habit of drinking and intoxication, his hearing of voices and communications witli the spirits of the dead, his mutterings and outcries while asleep, the delusions which caused him to arm himself with guns and pistols, backed up by a bottle of whisky to supply courage, insults offered her, and attempts to take her life. True, it appears that he had been guilty of similar conduct at other times in the presence of others. This conduct and declarations in the presence of others it is competent for her to relate; but this does not authorize or permit her to testify about similar conduct and declarations made to her alone.

We think the major part of Mrs. Kirk’s testimony comes under the condemnation of the rule which prevents one spouse from testifying about the acts and words of the other, which acts or words were performed or uttered when they were alone and were therefore to be deemed confidential. This rule has been relaxed in many jurisdictions, and many arguments are advanced to buttress the exception allowed. With these exceptions as weapons, able and distinguished counsel have laid siege to, assaulted, and pounded the rule, until it is a mere shadow of the original. We prefer to adhere to the old rule in all of its form and purity. We are unable to differentiate between acts and words — and cannot appreciate the distinction between words termed “verbal acts” and mere words used in the confidential relations between husband and wife.

The confession of adultery, or the charge of infidelity, made in the privacy and under the confidence of the marriage confessional, are both protected. It will not do to say that because the husband, in a moment of contrition, or apprehension of ultimate detection, confesses to his adulterous relations with another woman, that this removes the ban of confidence, because the very act confessed tends to destroy the marital relations.

Again, because a husband, in a moment of jealous rage or drunken frenzy, confronts the virtuous wife with a cowardly and unfounded charge of infidelity, and because this deadliest of all insults is a thousand times worse than a blow, we do not think the wife can go upon the witness stand and detail before a jury the revolting and shocking brutality of her jealous or drunken spouse. By the policy of the law, as we understand it, the door of confidence is closed to all prying eyes and eager ears, never to he opened by the husband or wife in a court, whose duty it is to uphold the rule founded upon the wisdom of time and experience.

When the husband and wife are alone, everything said and done is under the protection of the rule and the declarations and conduct of both are presumed to he confidential. That similar acts occur and similar words are used in the presence of others raises no presumption that the presumably confidential declarations and conduct have been thereby released, and that those things said and done in privacy then become public property. Of course, many things are said and done by husband or wife, which upon their face hear no semblance of confidence; but ordinarily what a wife says to her bus-band alone is said because he is her husband, and because she can speak freely undisturbed by the possibility that he will repeat what she says. For this reason, we think, when communications between husband and wife can be reasonably construed as confidential, the rule of public policy applies, and no, matter what may happen in particular cases, the courts will not permit a disclosure.

Change does not always denote progress, and modern departures from ancient rules of law in response to the exigencies of particular cases frequently obliterate the wisest and safest rules designed for the protection of society. Modern practices and advanced ideas look with complaisance upon the spectacle of husband and wife worshiping different Gods and voting in the same booth for different candidates and different governmental policies. We confess to a preference for the old-fashioned ideal of the oneness of man and wife, and at the risk of being classed as “standpatters” we adopt as a sound policy, applicable to the wife as to the husband, the sentiment expressed in these words: “Therefore shall a man leave his father and his mother, and shall cleave unto his wife; and they shall be one flesh.” True, this admonition is hoary with age; but we doubt that the cock-suredness of modern iconoclasm has succeeded in demonstrating the unwisdom of the common paternal ancestor of all mankind. The majority still believe in the doctrine, even though few obey it.

There is an irreconcilable conflict in the authorities upon the precise point involved in this case. In Stein v. Bowman, 13 Pet. 209, 10 L. Ed. 129, it is said: “The rule which protects. domestic relations from exposure rests upon considerations of the peace of families, and it is conceived that the principle does not merely afford protection to the husband or wife, which they are at liberty to invoke or not, at their.discretion; but it renders them incompetent to disclose facts in evidence in violation of the rule. And it is well that the principle does not rest on the discretion of the parties. If it did, in most instances, it would afford no substantial protection to persons uninstructed in their rights, and thrown off of their guard and embarrassed by searching interrogatories. . . . Can the wife, under such circumstances, voluntarily or by compulsion, be required or permitted to disclose facts which render infamous the character of her husband? We think most clearly not. Public policy and established principles forbid it.”

In State v. Jolly, 20 N. C. 108, 32 Am. Dec. 656, the court, in commenting upon what acts and conduct are within the privilege as verbal communications, said: “But it is not enough to throw protection over communications made in the spirit of confidence. The intimacy of the marriage union enables each to be daily and almost constantly witness of the conduct of the other; and thus in fact a confidence, reaching much farther than that of verbal communication, is forced upon each of the parties. What one may even desire to conceal from all human eyes and ears is thus almost unavoidably brought within the observation of the other. . . . The rule we deem a valuable one, and we view with apprehension any exception having a tendency, more or less direct, to promote cunning, or to generate distrust, where the best interests of society require that perfect frankness and confidence ought to prevail. If one exception be sanctioned, because, from the character of the criminal act imputed, the dissent of the witness from its commission must be presumed, others may follow, where the like presumption will be entertained, . . . and there will be danger of our having no rule capable of general and steady application. . . . Moreover, the rule is not founded exclusively upon an actual voluntary confidence reposed by one of the married pair in the other, but also upon the unavoidable confidence which the intimacy of the marriage state necessarily produces.” See, also, Owen v. State, 78 Ala. 425, 56 Am. Rep. 40; Boykin v. Boykin, 70 N. C. 262, 16 Am. Rep. 776; Hanselman v. Dovel, 102 Mich. 505, 60. N. W. 978, 47 Am. St. Rep. 557; Brewer v. Ferguson, 11 Humph. (Tenn.) 568; Wickes v. Walton, 228 Ill. 56, 81 N. E. 798; Hertrich v. Hertrich, 114 Iowa, 643, 87 N. W. 689, 89 Am. St. Rep. 389; Monroe v. Twistleton, Peakes Add. Cases, 219; Doker v. Hasler, 21 E. C. L. 732; O’Connor v. Marjoribanks, 43 E. C. L. 228

In Schreffler v. Chase, 245 Ill. 395, 92 N. E. 272, 137 Am. St. Rep. 330, a case treating testimony much like the testimony delivered by Mrs. Kirk in this case, it is held that the divorced husband was incompetent to testify to the conduct of the testatrix, as observed by him from the time he married up to the time of the separation.

The other point relied upon for a reversal invokes a broader rule to exclude the testimony of Mrs. Kirk. It is insisted that she was incompetent to testify at all “to establish his [her] own or assigned claim . . . against the estate of a deceased person.” Section 1917, Revised Code of 1906. This section of the Code has been the law of the state since 1857, or longer. The language of the various statutes embodying the rule varies somewhat, but they are all to the same effect. Many times this court has construed this statute, and it is difficult to entirely harmonize the decisions. Able counsel for appellants in their briefs collate and critically analyze all the cases. We have examined the cases with care, and find ourselves unable to improve upon the work of counsel, and will therefore make use of their work by quoting liberally therefrom.

Before proceeding further, we now state the question, viz.: Did Mrs. Kirk testify to establish her claim against the estate of deceased, which claim originated during the lifetime of deceased? To answer this question, we come now to a consideration of the decisions, of this court:

Griffin v. Lower, 37 Miss. 458, was a suit by an administrator to recover on a note payable to him as such. Defendant offered to defend, by testifying about transactions with deceased in his lifetime, constituting the consideration for the note. Testimony excluded.

Kelly v. Miller, 39 Miss. 17, was a case in which an executor and devisee was admitted to testify in support of the will. The whole question was whether article 45, p. 434, Code 1857, which made void a devise to a subscribing witness, resulted in making such witness incompetent to testify in support of the will.

Lamar v. Williams, 39 Miss. 342, was a suit to recover damages for battery to a slave. Defendants offered to testify that the owner, since deceased, consented. Evidence excluded, and the court gave a broad meaning to the word “claim,” and said that the statute intended to prohibit the “undue advantage” of allowing a living party to “testify to matters which took place between him and the deceased, and which resting entirely in the private transactions of the parties, could not be disproved or explained by reason of the death of the other party. ’ ’

Witherspoon v. Blewett, 47 Miss. 570, contains a full and strong statement of the court’s policy in construing the statute. It was said that “the interpretation put upon the statute is broader than its words, but was demanded by its reason and intendment. ’ ’

Jacks v. Bridewell, 51 Miss. 887, contains a full and strong review and assertion of the policy and meaning of the statute. The statute extends to every assertion of right to any part of the estate left by a deceased party, by testimony about dealings with such party in his lifetime.

In Rothschild v. Hatch, 54 Miss. 554, A. L. Hatch, plaintiff in ejectment against the heirs of one Griffith, deceased, was held incompetent to testify about certain statements made by deceased in his lifetime as to the nature of his holding of the lands in controversy. In this case it was held that an assignment of the claim restored the competency of the party; whereupon the Legislature promptly passed Acts 1878, page 190, extending the exclusion to one who had assigned.

In Tucker v. Whitehead, 59 Miss. 594, it was held that the proponent and contestant were both competent to testify, nothwithstanding the statute, and Kelly v. Miller, supra, was cited. But this case was as follows: In deceased ’s papers was found a will, with the signature torn off. In such case, the law presumes that this was done by the testator, and done mimo revoccmdi. (See authorities cited by Mr. Leigh.) The' real claim and issue on this issue of devisavit vel non was this, and only this: A question of fact, whether after the death a brother of the deceased got hold of the will and mutilated it. That was the sole question actually brought before the jury as is shown by the statement of the case; and it was about that that the parties were in fact held competent to testify.

Neblett v. Neblett, 70 Miss. 572, 12 South. 598, was a controversy between two sets of devisees; the devises having been made in general terms, and the questions turning on the titles of the devisors. Stirling Neblett, Sr., conveyed to his two sons, W. J. Neblett and Stirling Neblett, Jr., in 1857. The father died in 1871, devising his estate to his wife, Ann Neblett. Stirling Neblett, Jr., one of the two donees by the deed above mentioned, died in 1877; his mother being still living. The mother, Add Neblett, then died in 1881. Then W. J. Neblett, the other donee by the deed above mentioned, died in 1891,10 years after the death of Ann. Bill was filed by the devisees of Ann Neblett, who died in 1881, against the devisees of Stirling Neblett, Jr., who died in 1877, and against the devisees of W. J. Neblett, who died in 1891, to vacate the deed of 1857. Complainants testified in their own behalf, but it was held that they were incompetent under the statute; their testimony going to show that after the making of the deed of 1857, until his death in 1871, Stirling Neblett, Sr., had retained possession of the lands, etc., and declarations and admissions by the deceased donees.

In Covington v. Frank, 77 Miss. 606, 27 South. 1000, Frank filed his bill against the unknown heirs of Covington,' deceased, to collect certain notes executed by Covington alone. Covington’s widow and daughter made appearance, interposed defense, etc., and testified to prove their relationship. Frank’s bill was filed against the “unknown heirs” of Covington, and the depositions of the widow and daughter were strictly responsive, and only proved their identity as being those heirs, whom the complainant had called into court by the general terms of his bill. In that action they were not pursuing the estate for anything, and no decree rendered in their favor could have established any right in them as against any representative or heir of the estate. On the other hand, they were not testifying defensively, within the meaning of the statute, because they were not being pursued in behalf of the estate of any person whatever. It was simply one instance of the well-recognized class of cases (of which there are numerous other instances in the decisions on this statute) where the testimony would only remotely or collaterally claim an interest, which would have to be vindicated or asserted effectually in some other suit or proceeding, if asserted at all. See note to Townsend v. Kennard, 1 Miss. Dec. 222, 224.

In Steen v. Kirkpatrick, 84 Miss. 63, 36 South. 140, T. J. Steen and his wife had an antenuptial agreement that if one should die the survivor should take interest in the deceased’s estate for life only, and that at the death of the survivor such interest should revert to the estate of the first decedent. Under this agreement, when Steen died, his wife received seventeen hundred and fifty dollars as her share of his estate, and while she lived fully recognized that on her own death this money was to he property of her husband’s estate. She did die; and a son of Steen (by a former marriage), in behalf of himself and his brothers of the whole blood, undertook to probate this claim against the estate of his stepmother. This probate was contested by the children of Mrs. Steen by her first marriage. In this state of the case it was held that W. T. Steen could testify. The decision was expressly put on the ground that “this claim is a controversy between the two sets of children, and did not originate during the lifetime of the decedent, Mrs. Steen. ’ ’

In Watson v. Duncan, 84 Miss. 763, 37 South. 125 Duncan, surviving his wife, renounced her will and elected to take under the law. ITis right to renounce was denied, and a prenuptial contract set up against him. He undertook to testify that the important clause in that contract was a forgery.

We think the points before the court in the several eases are fairly stated, and it will be observed that this court seems to have employed language and decided cases which can be construed to be on either side of this controversy. If Mrs. Kirk is competent to testify, her testimony will have the effect to destroy the will of her husband. Her evidence relates to the conduct and declarations of the deceased, and tends to prove that he was not mentally capable to make a will. If this incapacity is established, she would inherit all of his property, and her title to same was absolutely fixed and irrevocable, provided only she survived her incurably afflicted spouse. The effect of Mrs. Kirk’s testimony is to make it impossible for any act of Mr. Kirk to deprive her of a sure title to his estate, no matter what may be the equities of the case; If she could succeed in convincing a jury that her husband was incurably insane at and before the execution of his will, her status is conclusively fixed.

Nobody would contend that she was competent to testify that Mr. Kirk conveyed his property to her before his death, and that the deed of conveyance was properly acknowledged before an officer now dead, and that the deed was lost or destroyed. If she could establish such conveyance, it would follow that Mr. Kirk did not own any property, and that his will conveyed nothing to his devisees. If she can establish his insanity, the same result is reached, and her claim to his property originated before his death, and this inchoate claim would become a complete title, should she survive him. As a matter of fact, she is not testifying about an inchoate right, but about a right already ripened, into a sure thing. She related to the jury the conduct and declarations of the dead, which testimony has established his insanity; and the insanity'establishes her claim to his estate, and this claim is established by the acts and conduct of deceased, and it logically follows that her claim not only began or originated in the lifetime of the deceased, but was established then so far as the deceased was concerned. According to Mrs. Kirk’s testimony, his power to change her inchoate claim was abrogated by something originating in his lifetime, and death alone could rob her of her claim to his estate. This status, alleged to have originated during the lifetime of the husband, is the thing to be established by the testimony of the wife; and, when thus established, her claim to the estate is established, originating when the husband lost his mind, but not coming into full flower until his death.

The policy of the statute is to close the mouth of the living, because death has sealed the lips of the dead. In the instant case the husband cannot speak in defense of his right to dispose of one-half of his estate by will; and, if the policy of the law means anything, the living should not be permitted to establish a state of facts which the defendant cannot now deny, when, as here, the living wife absolutely fixes her claim to that portion of the estate. We think counsel for appellants in their brief thus accurately state the rule to be followed in deter-mi-mug whether or not the evidence offered should be admitted:

“Whenever a witness is offered for the purpose of proving any transaction, act, contract, admission, license, condition, etc. (whatever may be its exact nature), as ‘a fact to be proven,’ and proven as a fact existing or occurring prior to the death, and the proof of such fact as then existing or occurring is determinative of a claim or right of such witness to or in property of the deceased, and establishes such claim or right directly and finally there the witness is testifying to establish his claim which originated during the lifetime of such deceased. In short, the word ‘claim,’ as used in this statute, is employed in a broad and general sense; and it draws into the prohibition all testimony, the direct, immediate, and final effect of which is to establish in the witness’ own behalf a right in or to things prior to the death. The statute must be taken as dealing with an effectual claim — with a claim which means something, and is not a mere shadow. If the issue on the trial is such, in order for the claim to amount to anything, it is necessary to prove or disprove certain facts as existent or nonexistent before the death, then the claim originated before the death; for neither logically nor legally can the ‘claim’ be separated from what is necessary to make it effectual, or from anything that flows into it, becomes part of it, augments and increases it, and fixes, or contributes to fix, the scope of it. ”

We do not undertake to harmonize the decisions of this court construing section 1917 of the Code, but content ourselves with deciding that Mrs. Kirk’s evidence was to establish her claim to the estate of her deceased husband, within the meaning of the statute. So it is we have concluded that the testimony of Mrs. Kirk, relating to confidential relations and conduct of her husband, should not have been permitted to go to the jury, because the rule forbidding husband and wife to give such evidence is founded upon public policy, for the protection and conservation of the marital relations. We have further concluded that Mrs. Kirk is disqualified to testify in support of, or in aid of, her claim to the estate of her deceased husband about matters occurring within the lifetime of her husband.

Reversed omd remanded.

OPINION ON SUGGESTION OE ERROR.

Cook, J.

The original opinion in this case is reported in 61 South. 737. The reversal was based upon two errors of the trial court, to wit: (1) Because the wife of deceased was permitted to testify about the acts and words of her husband, done and said under the protection of confidential communication between husband and wife. (2) Because the testimony of the wife was to establish her own claim to the estate of the deceased, which originated during the lifetime of the deceased.

This case is again before the court on' suggestion of error. It is claimed that the court erred in reversing the case at all; but, as only the ruling on the second ground is seriously and earnestly attacked, we will confine this opinion to that assignment of error. The briefs on file are the products of the brains of the most illustrious lawyers of the state, and every phase of this controversy has been threshed over with consummate skill and ability. Nothing has been left unsaid which could possibly throw any light upon the question. What we may say will therefore necessarily be a paraphrase or literal quotation from the briefs.

The dominant note of the arguments in support of the suggestion of error is that eminent lawyers have not heretofore raised the precise point here involved, and that the decision in this case is “contrary to general professional understanding in this state.” It is also contended that former decisions of this court are in conflict with our decision of the present case; hut no such decision has been cited, and it is believed that none can be found.

It may be admitted that the question here considered, by general professional understanding, has been settled adversely to the original opinion in this case, and yet the general understanding may be, and we think is, far from the truth. The writer was in the class who believed that the point had been so settled when a review of the question was begun by this court in this case; but a careful consideration of all the decisions of this court convinced us that this belief was not supported by the decided cases, and now, after re-examination of the cases, and after a thorough consideration of the very able briefs, we are more convinced that the assumed “general professional understanding” can find but little comfort in the reported cases. If such general understanding exists, it resulted from a misinterpretation of the decisions, and is unsound and destructive of the very spirit and purpose of the statute, which was intended to seal the lips of the living; death having sealed the lips, of the dead. It comes about by a narrow construction of the word “claim,” by which narrow construction the purpose of the law is nullified.

Mrs. Kirk’s claim to the entire estate of her deceased husband, if it exists, is owing to, springs from, and originated in his insanity, and his insanity is hinged and turns upon his acts and words performed and spoken during his lifetime. Stated differently, if Mrs. Kirk can show that her husband was insane at, before, and after the time he executed the will, she having survived him, and he being childless, she will then have established her claim to his entire estate. By her testimony, she established his insanity — fifis insanity, of course, occurred during his lifetime — and the evidence to prove his insanity is composed of his acts and conversation; therefore it seems to logically follow that she testified about a claim, or right, which depended and turned upon, and which originated because of, his insanity, and, when he became incurably insane, then it was her right, or claim, had its origin. The claim or right to enforce the payment of a debt against the estate of a deceased person does not originate until the person is dead, but the claim or right upon which the remedy is sought may have originated before or after the death. If it originated before the death, the person making the claim is not permitted to establish same by his own testimony; if it originated afte'r the death, and in the course of the administration, such elaimant may establish same by his own testimony.

“Before statutes on the subject, parties to suits were not competent witnesses in their own behalf. With the removal of the incompetency of parties as witnesses for themselves, there was excepted from the cases in which they might testify all in which a right is asserted against any part of the estate of a deceased person, no matter in whose hands it might be at the time of the controversy, and which ‘right’ rests upon something occurring in the lifetime of such deceased person, and having relation to him.” Jacks v. Bridewell, 51 Miss. 881.

‘ ‘ Prior to the Code of 1857, it was competent for either party in a justice’s court to prove his claim by his own oath, after making oath that he had no evidence to establish it, in his power to procure; and such was the law even in suits against decedents’ estates. By article 18, p. 408, .Code of 1857, this rule was changed, so as to admit either party in that court to prove his own claim or defense, without such preliminary affidavit, and so as to allow one party to require the other to testify. By article 190, page 510, of that Code, the common-law disability, because of interest, to testify, was removed; but in so doing the Legislature added the proviso ‘that no person shall be a witness in any suit by or against himself, to establish his own claim to an amount exceeding fifty dollars, against the estate of a deceased person.’ ”

“Griffin v. Lower, 37 Miss. 458, explains all this legislation ; and it is there adjudged that the object of the proviso was to protect the estate of deceased persons' against the operation of article 190, and at the same time to make no change in the practice observed in the justices ’ courts. Thus the proviso, in its very origin, was declared by this court to be restrictive, in the particular with which it deals, of the general policy in removing the common-law disability to testify.”

Lamar v. Williams, 39 Miss. 342, decided in 1880, was trespass for flogging a slave; suit by administrator of the deceased owner. The defendant was offered in order to prove that the whipping was given' in the lifetime of the owner and by his permission. This court said this: “It is insisted that the defendants were not debarred of the right of testifying by the proviso to article 190, page 510, Rev. Code, because that proviso applies only to ‘claims’ against a deceased person’s estate, involved in a suit by or against the party offered as a witness, and that, the object of the defendants not being to establish any ‘claim’ against the estate of plaintiff’s intestate, they were not within the proviso.”

“We do not think the spirit of the statute justifies this position, or that the term ‘claim’ should receive this restricted construction. If it be interpreted on the mere sense of a fixed debt against an estate, such as is contemplated by the statute in relation to the probate of ‘claims’ against a decedent’s estate — as is contended in behalf of the plaintiffs in error — a plaintiff in any action ex delicto against the estate of a decedent, the cause of which had accrued in his lifetime, or for the recovery of a specific chattel, would have the right to testify in his own behalf; and any defendant, sued by the representatives of a decedent for a cause of action which accrued in the decedent’s lifetime, would be authorized to testify to anything which would avoid the demand, such as payment to the decedent, set-off, non est factum, and the like, because that would not be to set up any ‘claim’ against the estate. But this is clearly in contravention of the policy of the statute as it has been recognized by us in the case of Griffin v. Lower, 37 Miss. 458. The spirit and policy of the proviso appears clearly to be that a living party, either plaintiff or defendant, in an action in which the representatives of a decedent’s estate are a party, shall not be competent to testify in his own behalf to establish his demand or right, asserted and relied on in the action against the estate, if the matter exceed the sum of fifty dollars, because an undue advantage would thereby be given to the living party, by enabling him to testify to matters which took place between him and the decedent, and which, resting entirely in the private transactions of the parties, could not be disproved or explained by reason of the death of the other party. ’ ’

After this decision, we find the Legislature of the state, in Code 1871, section 758, adopted the following statute: “No person shall testify as a witness to establish his own claim of any amount, for or against the estate of a deceased person, which originated during the lifetime of such deceased person.' But such person so interested shall be permitted to give evidence in support of his demand against the estate of a deceased person which originated after the death of such deceased person, in the course of administering the estate.” It will be observed that the legislature by this statute progressed by providing that no person could testify in support of his claim against the estate of a deceased person for any amount and providing further that a party interested might testify, and the permission is given in such case only “in support of his demand against the estate of a deceased person which originated after the death of such deceased person, in the course of administering the estate. ’ ’

In Witherspoon v. Blewett, 47 Miss. 570, decided in 1873, the court, construing section 758 of the Code of 1871, said this: ‘ ‘ The manifest reason for the exclusion of such witness is to shut out ex parte evidence touching matters and transactions which transpired in the lifetime of the deceased, after death has sealed the lips of one of the parties, so that his version and explanations and statements cannot he heard. It was, too, to prevent the establishment of false and simulated claims, by such ex parte and interested testimony, against estates.”

“But does the reason and spirit of the proviso to the section apply where the facts to which the witness testifies arose after the intestate’s death, touching, too, a cause of action which had its inception posterior to his death? The interpretation put upon the statute is broader than its words, but was demanded by its reason and intendment. This much is plain: If the suit be for a tort or a contract done or made in the lifetime of the intestate, the survivor is incompetent to prove the one or the other against the estate; so, if he is sought to be charged by the administrator with either, he cannot testify in his discharge. . . . Following in the line of the liberal exposition which has been given to the statute, we have been brought to the conclusion that, when no cause of action existed in the lifetime of the deceased, but originated afterwards, either for or against the estate, the parties to the suit are competent witnesses as to those matters which originated after the intestate’s death. In order to quiet doubts on this point, Code 1871, section 758, allows such interested person to testify ‘in support of a demand against an estate, which originated after the death of such deceased person, in the course of administering the estate. This, because the administrator or executor may be supposed to be conversant with such demands; and the reason for the exclusion, where the cause of action existed in intestate’s lifetime, has no force.’ ”

Afterwards, in 1876, Jacks v. Bridewell, supra, was decided by this court, and in the course of this decision, the following language is employed: “The object is to prevent the assertion of rights to what a deceased person left, by virtue of some act of such deceased person from being supported by the testimony of him who asserts the right. . . . When death has placed the evidence of one of the parties to the transaction, out of which the claim arises, beyond the pale of the court, the statute enacts that the other shall not be heard, for or against such claim. As to that transaction, both of the parties thereto are dead — one through natural causes, the other by legislative enactment.”

In reply to the argument of counsel in support of the suggestion of error, we quote from the brief of counsel for appellants, because we believe the same to be a complete and satisfactory answer to the position of appellee in this case:

“The vice in the whole argument is that it assumes as a definition of the word ‘claim,’ as that word is employed in the statute, a restriction of meaning which is incorrect, and is directly in the teeth of the purpose and meaning of the word and of the statute, as announced in several cases, and recognized for fifty years past. The expression is not to be confined in its application to such claims or demands as import an assertion of a direct legal liability of the decedent to the claimant, or of a present title of the claimant in or to decedent’s estate, or some part thereof. The very first case, but one, Lamar v. Williams, 39 Miss. 342, cited above, settled that. The claim successfully asserted there was merely defensive against an action of tort, a license given by the decedent in his lifetime; and the court denied that the word ‘claim’ should receive the restricted construction, or be interpreted in the mere sense of a fixed debt, or of a demand ex contractu. The court enlarges on the spirit of the statute, and points how a demand and a right are different, and that there are different sorts of rights. In view of this decision, what possible force can there be in the suggestion that Mrs. Kirk’s claim was not such a one as she could assign or as would descend to her heirs'? None whatever. . . . Opposite counsel not only place too restricted an interpretation on the word ‘ claim, ’ and one wholly unauthorized, hut also too restricted an interpretation on the other expression used in the statute, ‘which originated during the lifetime of such deceased person.’ He argues throughout (it constitutes the backbone of his whole suggestion) as if the word ‘originated’ imported the notion of consummation of title, or vestiture of right, prior to the death. He says the claim contemplated by the statute must be ‘complete’ or ‘perfect’ before the death — all the expressions employed by him conveying the meaning that the claim asserted must be one about some sort of a vested interest; and then he asserts that Mrs. Kirk’s interest was not such, but only sprung into existence eo instante, on the death, etc. It is too narrow a view, and also is not authorized either by the original lexicographical use of the word ‘originated,’ or by its special judicial and legislative history in this connection. ”

We have referred to all the cases relied upon in this suggestion of error in the original opinion, and endeavored to point out just what was decided by those cases, except the three cases now cited for the first time, to wit, Jamison v. Jamison, 92 Miss. 468, 46 South. 83, 945, Sivley v. Roberts, 53 South. 595, and Hitt v. Terry, 92 Miss. 671, 46 South. 899. We do not think that either of the last three named cases are of any value here, for the simple reason that the point involved in this controversy was not raised in those cases, either in the lower court or in the supreme court; and, for that reason, it is manifest that the decision of those cases did not rest upon the point in controversy in this case. Why the point was not raised and relied upon in those cases is not for us to say. The point was not raised and if not raised, it seems clear to us that this court was not called upon to raise the point itself; and, in fact, the court in neither of those cases did discuss or refer to the point now being discussed.

Six cases are cited, all of which it is said “do discuss and do decide the precise question.” We will now borrow the analysis of these cases from the brief of counsel for appellants. Learned counsel, speaking of the assertion that these cases do discuss and do decide the precise question, has this to say: “If they do not, then we say that counsel will have ‘ struck out. ’ ’ ’

Of Tucker v. Whitehead, 59 Miss. 594 (the first case adduced), counsel for appellants say. “There was no question whatever about the testator’s capacity, none about the original execution of the will. The specific and only question to be tried was this: Whether after the death the document had or had not been mutilated. Judge Chalmers, himself so says, on pages 604, 605: ‘The deceased was a bachelor, and his brother, Thomas M. Tucker, was known to have had free access to his papers during the period intervening between his death and the finding of the mutilated will. The niece, believing that the mutilation had occurred after death, and by the hand of a spoliator, offered the will for probate, and upon proof satisfactory to the clerk and the chancellor it was duly admitted to probate in common form in the chancery court of Clay county. Subsequently a portion of the heirs at law, including the brother towards whom suspicion pointed as the mutilator of the document, instituted this proceeding for an issue of devisavit vel non.’ ” Counsel then proceeds: “The very opinion of the court shows, therefore, that it was, in fact, a controversy over what occurred after the death. That was the point in issue; the determinative fact. No witness was offered for the purpose of proving (like Mrs. Kirk) any act, fact, condition, or status existing prior to the death as determinative of the right claimed by such witness.”

Of Covington v. Frank, 77 Miss. 606, 27 South. 1000 (the second case adduced), counsel say: “This case was analyzed by us, and its inapplicability pointed out, in our original brief. We then and there pointed out that it was decided correctly, but a wrong reason was given; it is good in its class, but no authority whatever in this case, because this case is not of that class. It did not determine anything whatever as between witnesses and the estate. The record made could never have been used for any such purpose; it was collateral, within the settled line of decisions which began with Faler v. Gordon, 44 Miss. 283. The bill in that case had been filed by creditors to enforce a mortgage against the ‘unknown heirs,’ etc., and Mary Covington and Cornelia Miller had come in as such heirs to defend that bill. They were not establishing their claim against the estate, but only establishing their right to defend that suit. The record in that suit could not possibly have been used against the estate for the purpose of establishing any claim of theirs against the estate. This court decided the case with manifest correctness; but Judge Terral gave a clearly wrong reason, and that is all about it. The wrong reason, is not decision.” Judge Terral in that case said this: “The claim directly in issue here is the claim of these executors; the right of Mary Covington and Cornelia Miller is only indirectly concerned. ’ ’

Steen v. Kirkpatrick, 84 Miss. 63, 36 South. 140, is thus treated: “T. J. Steen and his wife had an antenuptial agreement that if one should die the survivor should take the interest in the deceased’s estate for life only, and that at the death of the survivor such interest should revert to the estate of the first decedent. Under this agreement, when Steen died, his wife received one thousand seven hundred and fifty dollars as her share of his estate, and while she lived she fully recognized that on her own death this money was to be property of her husband’s estate. She did die; and a son of Steen’s (by a former marriage), in behalf of himself and his brethren of the whole blood, undertook to probate this claim against the estate of his stepmother. This prohate was contested hy the children of Mrs. Steen hy her first marriage. In this state of the case it was held that W. T. Steen conld testify. The decision was expressly pnt on the ground that ‘this claim is a controversy between the two sets of children, and did not originate during the lifetime of the decedent, Mrs. Steen.’ This case is clearly a wrong decision, and should be overruled. The learned judge who delivered the opinion of the court fell into the error of treating the word ‘claim,’ used in the statute, as if it were synonymous with the word ‘controversy,’ and weighed the statute, and limited its application, as if it had run thus: ‘A person shall not testify as a witness to establish his own claim against the estate of a deceased person in a controversy which originated during the lifetime of such deceased person.’ But such is not the statute. It makes no difference when the controversy arises; but, if the death must be established by proof of facts prior to the death, then the claimant cannot testify. That is clear, simple, sane, and safe. Counsel now insist upon that decision. We have a right to expect that in their suggestion they should answer our criticism of the case; they have not even attempted to do so. Until they do, we stand upon that criticism and reaffirm it. And we reaffirm the proposition, made in our original brief (page 28) that Watson v. Duncan, 84 Miss. 763, 37 South. 125, showed the true rule, and in effect overruled Steen v. Kirkpatrick. In their original printed brief (not in this suggestion of error) counsel undertake on page 43 to refute that proposition, but in the effort practically show that we were and are right, so fatally does their argument halt. First, they expressly admit that ‘Duncan’s testimony was manifestly incompetent’ ; also that by this court ‘his incompetency was treated as a matter of course, as counsel remarked. ’ So far we have made progress. Secondly, why was his testimony incompetent and so treated by the court? Counsel say, at first, because it was ‘testimony that an important clause in the will was a forgery, ’ which is erroneous, as their own statement shows later; it was a clause in the antenuptial contract which was the forgery; it was, then, Duncan’s attempt to prove such forgery in the antenuptial contract which made him incompetent. Thirdly, the attitude of the parties as to the ‘claim’ asserted was this: Duncan, a childless widow, was asserting his right as statutory heir, he having renounced the will to one-half her estate; Mrs. Kirk, a childless widow, was asserting her right as statutory heir, as in case of intestacy, to the whole estate; in each instance the right asserted was of. inheritance, eo instante the death, by statute. Fourthly, in the Dumccm Case the devisees under the renounced will set up against his renunciation and claim, by way of defense, an antenuptial contract which contained a stipulation that the decedent might will her property as she might want to any persons, which stipulation Duncan offers to prove, by his own testimony as to matters before the death, was a forgery; while in this case the legatees under Kirk’s will set up against Mrs. Kirk’s claim, by way of defense, a will to themselves, which will Mrs. Kirk offers to prove, by her' own testimony as to matters before the death, was a nullity for want of testamentary capacity. ’ ’

Speaking of Kelly v. Miller, 39 Miss. 17, counsel say that this case ‘ ‘ does not bear on this question at- all; that the whole question there considered and decided was whether article 45, page 434, Code 1857, which made void a devise to a subscribing witness, resulted in making such witness incompetent to testify in support of the will. This interpretation of the case is not ours. Judge Harris delivered the opinion of the court, and he said this: ‘The only error in law assigned, so far as we are able to ascertain from the arguments of counsel (no assignment of errors appearing, among the papers submitted to us), is that the testimony of Miller — the devise«, legatee, and executor under the will — was allowed over the objections of appellant.’ On this point it is urged that, inasmuch as by our Code (page 434, art. 45) a devise or bequest to a subscribing witness is void, he is incompetent to testify when called to support a will in his favor. There is certainly no force in this objection. The article relied on does not make even a subscribing witness incompetent to testify, but removes his interest by declaring the devise or bequest, under such circumstances, void as to him.”

Ordinarily we would not go over a former decision to the extent we have in this case; but the importance of our decision is fully realized, and the earnest insistence of counsel (whose reputations as learned jurists are written in the judicial history of the state) that we went wrong in the original opinion seems to demand a somewhat lengthy restatement of our interpretation of the-decisions of this court upon the question before us. The-reply brief of the great lawyer representing appellants,, in our opinion, is a demonstration of the correctness of our original conclusions, and from this brief is drawn the major part of this opinion.

The decisions of other courts, upon different statutes, it is believed, do not aid in the solution of this controversy. In our original investigations, it was discovered that our statute is radically different from the statutes of all other states which we could find. The statutes of the several states are analyzed in Encyclopedia of Evidence.

Suggestion overruled.

Case Details

Case Name: Whitehead v. Kirk

Court Name: Mississippi Supreme Court

Date Published: Mar 15, 1913

Citation: 61 So. 737

Court Abbreviation: Miss.