Citation Numbers: 28 Ga. 571
Judges: Lumpkin
Filed Date: 6/15/1859
Status: Precedential
Modified Date: 1/12/2023
By the Court.
delivering the opinion.
If J. R. Combs was a competent witness in this case, it is conceded that the will of John W. Allen, deceased, is sufficiently proven. Was his testimony admissible ? The answer to this question depends upon the sufficiency of the releases executed by Combs’ wife, in order to qualify him to testify.
The points ingeniously made and ably discussed by-counsel, upon this branch of the case, are delicate and somewhat perplexed. Still after a full and somewhat careful examination of all the authorities cited, 'and others at our command, -we feel constrained to let in the testimony of this witness.
It is not disputed but that Combs had the right to relinquish his interest under the will to his wife and children, but the power of Mrs. Combs to convey to her chib dren all of her interest under the will of the testator, and under the release executed by her husband, so as to qualify him to testify in the case, is strenuously combatted. Without examining separately the four objections made and argued against the right of the wife to make the-relinquishment which she did, we would state, as the judg
It will be found that it is only when dealing with her husband that a court of equity will see to it, by examination or otherwise, that the wife acts as a free agent. There is and can be no such necessity for interfering, when executing a conveyance to her children.
As to the impolicy of allowing husband and wife to testify for or against each other, while we fully recognize the rule, although it be “a creature of judicial parentage” and not of “positive law,” still we cannot see its applicability in the present case. The wife’s interest, whether .under the will of JohnW. Allen, as a child of Booth, or as heir or distributee of her deceased sister, Mary Booth, had ceased before her husband was called upon to testify. Nor does his testimony relate back to any past act or declaration of hers. The issue is devisavit vel non as to John W. Allen’s will, and we must think the principle invoked is wholly foreign to the question to be tried; and to which the husband was called as a witness. The wife’s intesest was but prospective at best; and she had ceased to be a party even in interest, as to that.
What conjugal confidence would be violated, what matrimonial endearments impaired by the allowance of the proofs ? We again confess our inability to appreciate the force of the reasoning upon which this exception is founded.
Judgment affirmed.