Howie v. Legro , 78 N.H. 325 ( 1917 )

As the executrix did not elect to testify, the exclusion of the plaintiff's testimony as to conversations between the deceased and himself, tending to show a contract between them, was proper. P. S., c. 224, s. 16; Perkins v. Perkins, 68 N.H. 264; Parsons v. Wentworth, 73 N.H. 122; Giles v. Smith, 74 N.H. 238; Jordan v. Jordan's Estate, 76 N.H. 20, and numerous other cases.

The plaintiff contends that he should have been allowed to testify under section 17 of said chapter 224, which provides that "when it clearly appears to the court that injustice may be done without the testimony of the party in such case, he may be allowed to testify." In construing this section the courts have always been very reluctant to allow such testimony, and have never permitted it unless it was very clearly made to appear that injustice would be done by its exclusion. The rule being, in all ordinary cases, that the surviving party cannot give evidence as to any facts about which the deceased could testify, if living. In Chandler v. Davis,47 N.H. 462, 465, Perley, C. J. said: "But we think, that, for ordinary cases, the safe guide and the decisive test is found in the inquiry whether the deceased, if alive, could testify to the same matters." Hoit v. Russell, 56 N.H. 559, 563; Tuck v. Nelson, 62 N.H. 469; Simpson v. Gafney,66 N.H. 261. The testimony of the surviving party is never received as to matters about which the deceased could have testified, when his representative being a party to the suit does not elect to testify, unless it appears from other evidence than that of the party himself that injustice will be done by its rejection. Harvey v. Hilliard, 47 N.H. 551; Fosgate v. Thompson, 54 N.H. 455; Cochran v. Langmaid, 60 N.H. 571; Sheehan v. Hennessey, 65 N.H. 101. There was no such evidence in this case.

The court committed no error in excluding the writing signed by the plaintiff and offered in evidence by him, which states in substance that he would not collect wages of the deceased as long as she lived, on condition that he should have all of her property, if he outlived her. It does not appear that the paper was binding upon the deceased, it was not signed by her, and there is nothing in the case to indicate that she assented to the condition therein, or that she ever saw it, or knew of its contents. It was therefore in the nature of a self-serving declaration, and its admission would have placed before the court by indirection the testimony of the plaintiff, which, as above pointed out, could not be received in this case. Furthermore, as the paper was not obligatory upon the deceased, its introduction in evidence could not have affected the issue on trial, and it might well have been rejected as immaterial.

Exceptions overruled.

All concurred.