Alcorn's v. Cook , 101 Pa. 209 ( 1882 )

Mr. Justice Gordon

delivered the opinion of the court, November 20th, 1882.

The admissibility of the evidence of Branthoover for the plaintiff below, is the only matter in this case which involves serious debate. The note in question purported to have been executed by Alcorn and Branthoover jointly. The suit was brought against the latter, and John G. McCauley, the executor of Alcorn’s estate. This case then, falls within the proviso to the Act of 1869, and must be determined by those rules of evidence which were of force previously to the approval of that Act. But under these rules, Branthoover’s testimony ought to have been excluded; first, because his oath as proposed in the offer, would have the effect to relieve him of the one-half of the obligation in suit by casting that much of it upon the estate which he represented. He was thus personally interested against that estate, hence, not competent for the purpose proposed: Bellas v. Fagely, 7 Har. 276; Hogeboom v. Gibbs, 7 Nor. 235.

Admitting, however, that Alcorn was but surety in the note, and that because of that fact, Branthoover had nothing to gain by charging the estate, yet as he was personally a party to the record he could not be made a. witness against the estate, without the consent.of its representative: Wolf v. Fink, 1 Barr 435; Swanzey v. Parker, 14 Wr. 441. Therefore, unless the ruling of the court below is sustained by the Act of 1865 it cannot stand. -But we are inclined to the opinion that this Act affords it no support. This statute must be construed with its supplement of 1867. The two are essentially one, and must stand together. Both parties must have the benefit of these-acts or neither, and where by actus dei the latter is inoperative the former falls with it. The legislature soon discovered that the rule permitting a party to make a witness of one of» two or more of his adversaries was often productive of more harm than good, hence it was so altered by the Act of 1867 that the calling of one such witness qualified all his fellows as witnesses in their own behalf. Thus the rule was made equitable and just, and it was put out of the power of a party to do injustice to his opponents by the selection of one of their number to testify in his behalf, and who might really be interested rather for the person thus selecting him than for his own associates. If, however, we permit the Act of 1865 to be operative, in a case like the present, where its supplement cannot be applied, we strike down the legislative intent, and reinstate the statute as it originally stood, without regard to its subsequent qualification. .As we are not inclined to do this, we must necessarily hold that the Act of 1865, like that of 1869, has no application to suits by and against executors and administrators.

Again, Mrs. Branthoover appears to have been a daughter of the testator and one of his devisees, and for this reason, if for no other, Branthoover was not competent to testify against the estate in which his wife was directly interested. It is urged that there was no evidence tending to prove that the estate was not entirely solvent, and .sufficient, notwithstanding the claim in suit, to satisfy her legacy or bequest. This may be so, but wo cannot stop to measure the extent of her interest, whether groat or small; nor can we engage in inquiries as to the ability of the estate to meet the bequests and legacies directed by the will. That she had some interest in the property left by her father is not doubtful, and this being the case, as was said by Mr. Justice Sharswood, in Pringle v. Pringle, 9 P. F. S. 281, nothing is better sel,tied than that wherever the wife is interested the husband cannot be a witness; not indeed on the ground of personal interest, for of that he may have divested himself by a release, or by a settlement to her separate use, but on the ground of public policy.

It follows that the defendant’s first, third and fourth exceptions were well taken and must be sustained. The second and seventh assignments have nothing in them. According to the case of Jones v. Horner, 10 P. F. S. 214, where a party has a parol authority to sign a note for another, the power is well executed though a seal be appended to the payer’s name. So the judgment in itself was well enough entered against the executor, notwithstanding the testator’s joint obligor was; at the time, in full life, for a case of this kind is met and provided for by the Act of the 22nd of March, 1861.

The judgment is reversed and a new venire ordered.