Newton v. Newton , 77 Tex. 508 ( 1890 )

GAINES, Associate Justice.

—The cause of action in this case is a promissory note executed by appellants to their father James Newton. James Newton died, having devised and bequeathed all of his proqjerty to his second wife Mary Newton, who was also the stepmother of appellants. She brought the suit on the note as legatee under her husband’s will.

The defendants pleaded a want of consideration. They averred, in substance, that their father having divided among them a large portion of his property, became apprehensive that he had not reserved enough for his own wants, and applied to them to execute the note sued on for the purpose of contributing to his support if necessary, and that by reason of such request they executed the note without any other consideration whatever.

In order to maintain their defense the defendants offered to prove by the wife of one of them conversations between James Newton and her husband during the lifetime of the former which tended to show that the averments in the answer were true. The testimony was objected to by the plaintiff and was excluded by the court. ' We think this was error.

It is urged by the appellant that the witness was not a party to the suit and had no interest in its result, and was therefore competent to testify as to the facts offered to be proved. This ground is not tenable. A judgment against her husband in the suit would have been in effect a judgment against the community property, in which she had a half interest. As in the case of Simpson v. Brotherton, 62 Texas, 170, she was a real though not a nominal party to the suit. But the question arises whether the capacity in which the plaintiff sues is such as to preclude any party from testifying to statements by or transactions with her husband in his lifetime.

Article 2246 of the Revised Statutes removed the bar of the common law which excluded parties from testifying in their own cases. To the rule so established article 2248 makes certain exceptions. That article reads as follows: “In actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.” The latter provision as to heirs and legal representatives was not contained in the original act. Pasch. Dig., art. 6827.

Construing the first statute this court has held that the exceptions could not be extended by implication to a class of persons not named, although the reason for embracing them was equally as strong as those which existed for including the persons expressly designated. Roberts v. Yarboro, 41 Texas, 451; Markham v. Carothers, 47 Texas, 25.

The previous decisions construing the statute doubtless led to the addition which was incorporated in the Revised Statutes, and it is to be presumed that in extending the exceptions it was intended to name expressly every class of persons who were to be embraced within them, and to leave nothing to implication. The question then is, can the words “heirs or legal representatives” be construed to mean devisees or legatees? A legatee is not in legal signification an heir; nor do we think that devisees and legatees are embraced in the terms “legal representatives.” Executors and administrators, and if there be neither, the heirs, are the legal representatives of a deceased person. So when a community estate is being administered under the statute by the surviving husband or wife such survivor is the legal representative of the deceased as to the community property. But we know of no instance in which devisees and legatees have ever been held to be such. If the testator in this case had .assigned the note in controversy to the plaintiff in his lifetime instead of bequeathing it to her by his will, we see no reason why she should not be considered as much the legal representative in the one case as in the other. At all events it seems to us that if it had been intended to include devisees and legatees within the exceptions of the statute they would have been expressly mentioned, and that such intention would not have been expressed by words of such indeterminate meaning as “legal representatives.” We are of opinion therefore that the testimony was improperly excluded.

The promissory note in controversy did not purport upon its face to be given for a valuable consideration. But under our statutes all written instruments import a consideration. Rev. Stats., art. 4488. It is also provided that the consideration of a written instrument can only be impeached by a sworn plea. Rev. Stats., art. 1265. Such a plea was interposed in this case, and appellants now contend that the court erred in refusing to charge the jury that the burden was upon the plaintiff to prove that there was a valuable consideration for the note. The note imported a consideration, and the burden was upon the defendants to show that there was none. The effect of the sworn plea was not to shift the burden of proof, but merely to put the consideration in issue.

It is also complained that the court erred in charging upon a failure of consideration. If there was originally a valuable consideration to support the note, it could not be defeated by parol proof that the father agreed at the time it was executed to demand payment only in the event it was necessary for his maintenance and support. This would be to vary a written contract by parol evidence. The issue in the case was whether or not there was a want of consideration for the note, and it was error to charge upon a failure of consideration. This, however, it seems to us, was not prejudicial to appellants.

For the error of the court in excluding the deposition of Mrs. Newton, the judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered May 30, 1890.