McCrary's Adm'r v. Rash's Adm'r , 60 Ala. 374 ( 1877 )

STONE, J.

Section 3058 of the Code of 1876, being the act of March 2, 1875 (Pamph.'Acts, 252), is, in some respects, materially different from section 2704 of the Revised Code. Each declares that, as a general rule, being a party to the record, or interested in the issue tried, does not disqualify a witness in a civil cause. The exception found in section 2704, Revised Code, is in the following language : “In suits or proceedings by or against executors or administrators (as to which a different rule is not made by the laws of this State), neither party shall be allowed to testify against the other, as to any transaction with, or statement by the testator or intestate, unless called to testify thereto by the opposite party.” The meaning of the clause in parenthesis is, that this exception applied to all such cases, unless some case should arise, for which the Code, in some other clause, made a different rule or provision. The act of March 2, 1875 (Code of 1876, § 3058), provides, “that neither party shall be allowed to testify against the other, as to any transaction with, or statement by any deceased person, whose estate is interested in the result of such suit.” It will be readily seen that this enlarges the exception. In the former statute, the exclusion applied only when the “suit or proceeding was by or against an executor Or administrator,” and it was confined to “transactions with, and statements bv the testator or intestate.” Under the present statute, the exclusion applies to all classes of suits or proceedings, provided the offer be to prove, by a party to the suit, a transaction with, or statement by some deceased person, whose estate is interested in the result of, the suit. The first was confined to a testator or intestate, whose personal representative was, as such, a party to the suit, and to transactions with, and statements by such [deceased] testator or intestate. The latter includes transactions with, and statements by any deceased person, whose estate is interested in the result of the suit. The latter statute contains another exceptional clause not found in the former. It provides that parties to the suit shall not testify in their own favor, as to transactions with or statements by any deceased person, who, “at the time of such statement or transaction, acted in any representative or fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced.” This clause scarcely needs comment. It provides a rule different from that declared in Baldwin v. Ashley, 54 Ala. 82, which arose under the older statute.

The purpose of the exception, in each of these statutes, was to exclude the testimony of parties to the suit, when offered in their own behalf, to show transactions with, or statements by persons who have died, and consequently can not confront, and, perchance, contradict such testimony. It rests on the fear that personal interest will exercise an influence too controlling, unless it is confronted by an adversary interest, having equal knowledge of the facts. This exception has been uniformly upheld in its integrity, as a necessary restraint of abuses likely to grow out of the section of the Code we are considering. See Rupert v. Elston, 35 Ala. 79; Kirksey v. Kirksey, 41 Ala. 626, 634; Waldman v. Crommelin, 46 Ala. 580; Stallings v. Hinson, 49 Ala. 72; Davidson v. Rothschild, 49 Ala. 104.

The amendment of the section under discussion, extending, as it does, the restraints on parties testifying against decedents’ estates in adversary interest, furnishes an additional reason why we should not cripple this salutory exception, in its benificent operation. So, it has been held to apply to persons standing in the relation of beneficiaries, who, though not parties to the suit, are directly interested in the result.—McLemore v. Nuckolls, 37 Ala. 660, 672; Key v. Jones, 52 Ala. 238, 247. See, also, Walker v. Walker, 34 Ala. 469; Tisdale v. Maxwell, at present term.

Under the rule declared in the cases of McLemore v. Nuckolls, and Key v. Jones, supra, the witnesses, Bogers, Champion, and Almond McCrary, were incompetent to testify to transactions with, and statements by Bash, the deceased administrator ; and the Circuit Court did not err in excluding that part of the evidence.

2. The charge given and excepted to may have been, and probably was, calculated to mislead the jury. That is no ground for reversal. It was the privilege and duty of the defendant to ask an explanatory charge, by which the objectionable tendency of it could have been averted and healed. 1 Brick. Dig. 344, § 129.

The judgment is affirmed.

Brickell, C. J., not sitting, having been of counsel.