Munson v. Crookston , 219 Pa. 419 ( 1908 )

Per Curiam,

The offers to show declarations of the wife in the absence of the husband fall clearly into two classes, those in her own favor and those against her interest. Under the settled rules of evidence the latter were admissible, but the former were not. The learned judge below followed the rule.

Several of the assignments of error are rendered ineffective by failure to regard the rules of court. Objections were made to testimony offered, the objections were overruled and appellant excepted. But the testimony so objected to is not quoted in the assignment as required by rule 31, and there is, therefore, nothing on the record to show that even if improperly admitted it did the appellant any injury.

William Crookston, the surviving husband, was not a competent witness, and should not have been admitted to testify to matters occurring in the wife’s lifetime. Under clause (e) of sec. 5 of the evidence Act of May 23, 1887, P. L. 158, no person whose interest shall be adverse to the right of a deceased party shall be a competent witness to any matter occurring before the death of such party. The exception in the same section, “ unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy be between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses,” does not apply. The husband here claimed by devolution of law, that is, as tenant by the curtesy, an estate by descent, Cooke v. Doron, 215 Pa. 393, while the plaintiff claimed under the wife’s will, that is, by purchase. He therefore stood in her place, and the husband’s claim was adverse to her title which the plaintiff represented. Had the plaintiff claimed as heir or next of kin he would have claimed by devolution as the husband did, and both would have been competent witnesses under the exception quoted. But as the case stands, their claims are of different classes, and they are not within the exception of the statute: Rine v. Hall, 187 Pa. 264, 276; King v. Humphreys, 138 Pa. 310; Crothers v. Crothers, 149 Pa. 201; Baldwin v. Stier, 191 Pa. 432; Myers v. Litts, 195 Pa. 595; Shroyer v. Smith, 204 Pa. 310.

But the admission of the husband as a witness, though an error, did the appellant no injury for he had already failed to establish his cause of action. All the testimony given, even if the offers which were rejected should be included, show nothing more than quarrels, dissatisfaction with, the presence of the husband’s children by a former marriage, payment by the wife of many if not most of the bills, and other causes of dissension, but all of these together fall far short of showing desertion. The plain result of the whole was to show that the wife being dissatisfied with the domestic situation, preferred to live apart, and therefore left the husband. The judge in a careful and elaborate charge submitted the question to the jury. He might well have directed a verdict for defendant.

Judgment affirmed.