Cary v. Herrin , 59 Me. 361 ( 1871 )

Dickerson, J.

The plaintiffs bring this bill as heirs of the late Shepard Carv, deceased, to redeem a mortgate given by him to the defendant. The case was committed to a master whose report was presented for acceptance at the February term of the supreme judicial court for the county of Aroostook, a. d. 1871. The plaintiffs made a motion to set aside the report and have it recommitted, but the presiding justice overruled the motion, proforma, and ordered the report to be accepted, and the plaintiffs excepted.

The principal question reserved is, whether the master properly allowed the defendant to testify to facts that transpired prior to the death of the plaintiffs’ ancestor, against their objection.

The correctness of this ruling is attempted to be maintained on two grounds:

I. Because if is in accordance with the rules of evidence in equity proceedings. The rules of evidence are, in general, the same in equity as they are at law, both as to the competency of witnesses and other evidence. It is true, that when the parties to a bill in equity are merely nominal or fiduciary, or the facts depend solely upon the knowledge of the parties, and oath is so balanced against oath that it becomes necessary to determine the degree of credit to bo giren to the parties, it is competent to examine both parties, not as witnesses for themselves or each other, but to enlighten the conscience of the court. In other cases, too, parties may be examined by mutual consent, under the discretion of the court. But it is never competent for a master in chancery to examine a party against the objection of the adverse party, when, from the position of the parties, such examination would give that party an undue advantage over the other. 3 Greenl. Ev. § 838.

The plaintiff’s are parties in interest, and might be greatly prejudiced by the testimony of the defendant, not only as to facts that took place prior to the death of their ancestor, but which, also, were peculiarly within his knowledge. The ruling of the master in admitting tbe defendant to testify against tbe objection of tbe plaintiffs was not in accordance with the rules of evidence in equity proceedings. Nor is it allowable under the R. S. of 1857, c. 82, §83.

II. It is also claimed, that tbe ruling is authorized by the statute of 1870, c. 132. That act is as follows: “In an action by or against an executor, administrator, or other legal representative of a deceased person, in which his account books or other memoranda are used as evidence on either side, the party may testify in relation thereto.”

The question naturally arises ; what “ memoranda ” are intended by the statute ? Is it the memoranda of the deceased person .only, or the-memoranda of either party ? Oris the language “ other memoranda,” broad enough to include any memoranda, that are used in evidence by either party ? If the statute means memoranda of the deceased person only, is it limited to memoranda made by such person, or does it extend, also, to memoranda made by the other party, which was the property of the deceased person, 'or in his possession? It is clear, that when the memoranda, contemplated by the statute, whatever it is, is used in evidence by one party, the other party is a competent witness “ in relation thereto.” In this -respect the right of the parties to testify is correlative. 'It is obvi■ous from this provision, that it is not the purpose of the statute to give one party an undue advantage over the other, which would be the case, if the memoranda, mentioned in the statute, include mem-oranda made by one other than the deceased person, since to -allow such party to testify to his own writing, when introduced by the representative party, would, in effect, be„to give him the exclu-. sive right of explaining such writing, the right of the representative party to testify in relation to a writing that he is a stranger to being-wholly nugatory.

By the law as it stood before the act of 1870, when the books or rother memoranda of a deceased person were used in evidence in an action by or against his legal representative, the adverse party was excluded from being a witness. The object of that statute was to remove this disability in such cases, so that the living as well as the dead may be heard upon a subject in which both were originally alike interested. The “ memoranda ” mentioned in the statute means the memoranda made by the deceased person. The colloction of the words of the statute, as well as the reason for such provision, warrant this construction. If we insert “his” before “ other ” the meaning of the statute will not be changed, but rendered more obvious ; that qualifying word was undoubtedly omitted in the statute to avoid its repetition. The omission of the comma after “ books ” in the punctuation indicates this construction. If other memoranda than those made by the deceased person had been intended, the language would have been, “ or any other memo-randa.” The meaning of the statute is the same as though it read “ his books or his other memoranda.”

To apply the provisions of this statute to memoranda made by the surviving party interested in it, would be to subject his administrator, to the same disadvantage practically, that the adverse party was under, in such cases, before the statute was passed. It was not the purpose of this statute to transfer an existing burden from one party to the other, but to remove it entirely. Nor if we supply the word “ his,” would the phrase, “ his other memoranda,” include the memoranda made by the adverse party, which might be the property of the deceased person at the time of his death, any more than the words “ his books,” include books made by the other party, but owned by the person deceased. Whether we consider the language of the statute, the difficulty to bo remedied, or the purpose to be accomplished, the only rational conclusion is that the ■words “ other memoranda ” are intended to apply only to memo-randa made by the person deceased. The statute of 1870 affords no warrant for admitting the testimony of the defendant.

As the other doings of the master complained of related to the evidence improperly admitted, it is unnecessary to consider that branch of the exceptions. Exceptions sustained,

AppletoN, C. J.; CuttiNG, KeNt, WaltoN, and DaNfokth, JJ., concurred.