Dennett v. Dow , 17 Me. 19 ( 1840 )

The opinion of a majority of the Court, Shepley J. dissenting, was drawn up by

Weston C. J.

The party who would establish a will is bound by law to call the subscribing witnesses. By their attestation, they give credit to the will; and Parsons C. J. says, it is their duty to be satisfied of the sanity of the testator, before they subscribe the instrument. Buckminster & al. v. Perry, 4 Mass. R. 593. But they may disappoint the expectations of the party, who calls them. They may deny their attestation as witnesses, or they may testify, that the testator was not of sound disposing mind and memory.

The party however is not precluded from showing, that the testimony, thus unexpectedly given, is not true. Wills have been established, where the subscribing witnesses have denied their attestation. Pike v. Badmering, cited in 2 Strange, 1096 ; Alexander v. Clayton, 4 Burrow, 2224. In the latter case, Lord Mansfield said, it is of terrible consequence, that witnesses to wills should be tampered with to deny their own attestation; and Mr. Justice Ashton notices a fact bearing against their testimony, that every one of the witnesses had acknowledged their having attested the will. There must then have been evidence in the case, that they had made such acknowledgment. And this must have been elicited by the party, by whom they were called, and whose interest it was to establish the will. In Lowe v. Jolliffe, 1 Bl. Rep. 365, the three attesting witnesses to the will, and two to the codicil, testified against the capacity of the testator to make a will, yet they were suffered to be contradicted, and the will was established by other testimony. The same rule has been applied, where the subscribing witnesses to other instruments deny their attestation, or fail to prove their execution; although this was at one time doubted. Abbott v. Plumb, Douglas, 215.

The credit of the party’s witness is thus, by necessary implication, impeached, by showing the falsity of his testimony. This may be done, by calling witnesses directly to contradict him. To prove that he has contradicted himself, is of the same character in principle. The question to be determined is, the truth or falsity of his testimony. A want of consistency, conflicting declarations, made at other times, whether under oath or not, are fairly calculated to throw light upon this question. And if excluded, the party who has no other alternative but to call the witness, is obliged by force of a technical rule, to submit to a perversion of truth, which he has it in his power to expose, from the declarations of the witness himself. The rule is intended to promote the cause of justice, by refusing to allow a party the advantage of impeaching his witness or not, according to the character of his testimony. And while limited to the case of a witness, whom he is at liberty to produce or not, the rule may be both reasonable and salutary, but when extended to one, without whom he cannot proceed in his case, it is carried farther than the reason of the rule would seem to justify. And yet we are not aware, that a party has in any case been permitted to impeach the credit of his own witness, by showing that his general character for truth is not good. But when he is obliged to call a subscribing witness, if not in other cases, he may impeach his credit, by showing directly by the testimony of others, that what he has testified to is not true.

It has been found best to serve the cause of truth, that relevant testimony should be liberally received, for the consideration of the jury. Hence many objections are now held to go to the credibility of a witness, which were formerly regarded as affecting his competency. And while a direct impeachment of the credit of the party’s own witness has been uniformly denied, an indirect impeachment has in certain cases been permitted. A direct impeachment affects general character, an indirect, brings into question the truth of the facts, to which the witness has testified. And a majority of the Court is of opinion, that in the class of cases, like the one under consideration, this may be done, by showing that the witness has made at other times contradictory statements. In Brown v. Bellows, 4 Pick. 179, this was expressly held not to be in conflict with the general rule, and upon that ground admitted. In Whitaker v. Salisbury, 15 Pick. 544, the court decide, that the party who calls a witness, shall not be permitted to impeach his general character, which they state was also decided in Brown v. Bellows. But in the latter case, proof of conflicting declarations as to the fact, to which the witness had sworn, was not regarded as impeaching his general character.

It is not easy to extract from the case of Ewer v. Ambrose, 3 Barn. & Cres. 746, any decided opinion, upon the point under consideration. Bayley J. notices that it is a case, where the witness was not forced upon the party, as he was here. He thought the party was not to be permitted to discredit his own witness, by producing an answer made by him in chancery, conflicting with his testimony. And he adds, “ the present impression of ray mind therefore is, that the answer ought not to have been received in evidence.” Holroyd J. says, “ it was certainly not admissible to prove generally, that the witness was not worthy of any credit. It might perhaps be admissible, if the effect of it were only to show that, as to the particular fact sworn to at the trial, the witness was mistaken.” Littledale J. says, “ it may be a doubtful question, whether the answer in chancery was properly received to prove a different state of facts, from that which the witness had sworn to at the trial. At all events, it could only be admissible to contradict the particular fact, to which the witness had then sworn.”

Such a limitation of the technical rule, as applied to witnesses, the party is obliged to call, as would admit the testimony rejected in this case, will lead to a more thorough investigation of the facts, upon which a jury may be called to pass, and will best promote the cause of truth. And the case before us very strongly illustrates the necessity of such a limitation. The subscribing witnesses must have been aware, that their attestation was desired to support the will. By becoming such, they are supposed to have satisfied themselves of the capacity of the testator. At the trial, they impeach the will upon this ground. If this may not be repelled, by showing that they have declared and testified differently, the whole weight of their judgment is thrown against the will, although it may be shown from their own mouths, either that their judgment, from want of consistency, is entitled to little weight, or that they have not truly stated the facts. It results, that competent and admissible testimony, in the opinion of a majority of the Court, having been rejected at the trial, the verdict must be set aside, and a new trial granted.