Gillespie v. Miller

The opinion of the court was delivered, by

Thompson, J.

— Whenever a married woman in Pennsylvania claims a separate property in things in the apparent possession of both, against the creditors of her husband, she is at once put upon proof to show how she acquired the separate ownership, that the presumption of ownership, or property in the husband, may be rebutted. There are many cases to this effect in the books, and they need not be cited.

In the interpleader in this case it became necessary for Mrs. Miller to make this proof. She claimed that the property seized had been purchased by money contributed by her sister to her, to be used, not in setting up her husband in business, but to enable her, through his agency, to sustain and support the family. Her right to the use of the money was m writing, together with her acceptance of the terms on which it had been contributed to be used, and these papers were put on record. Were they any evidence for the purpose of. showing her right independently of her husband? We think they were. If her title to the money had been derived through a' bequest, a bond, or mortgage, these instruments would certainly have been evidence to show it; and in what but in form is the difference ? We perceive none. In Patterson v. Holdship, 7 Watts 547, the same kind of evidence was received.

- It is said the papers are but the unsworn declarations of the parties to them. There may be truth in this, but the same might be said of a bond or mortgage, from which money may have been derived. So might it be said of releases or conveyances of land, but the instruments must be received, and if the evidence does not show them to have a bond fide foundation, they must' fail. If they are parcel of the transaction they cannot be excluded in the first instance. They are a step in the process of elucidating the question in hand. If sustained by other matters, they may establish the fact contended for. If not so sustained it is possible they may fail, but this test is after they are received and are tried by other things in the case. So in regard to these papers. It was the right of the party to give them in evidence. Their effect was dependent on other facts showing their soundness ; but those other facts could only follow on their admission. We think there was no error in their admission.

2. Was Miss Cashdollar a competent witness ? The writings alluded to in the foregoing points were executed by her on the one part. By them it appears that she had contributed to Jane Miller, her sister, the sum of $600, “ expressly and solely for the purpose of affording relief and support” for the family of David Miller, who was married to her sister, and “ in no manner or way” for his interest, “ excepting to the extent of the maintenance to be allowed him for his services to be rendered.” The arrangement was to last for six years, when she was to be reimbursed — or she might after a trial of eighteen months withdraw the capital invested, if not satisfied with its management.

It seems to me, under these circumstances, she was a competent witness. To exclude her, it must be shown that she would either gain or lose by the' verdict — that she would be directly involved in the consequences of it. This is the test: Bennett v. Hetherington, 16 S. & R. 193; 1 Greenl. Ev. § 391. But can this be done unless it be made to appear that she had a lien on the property in question in some way ? Certainly her deed of trust, as it has been called, gave her none such. Certainly, too, Miller was not her agent in buying the boats, and most certainly she had not the power under the right to withdraw the capital, for the period had not elapsed after which she might do so. Besides, if it had, it was her money she might withdraw, hut there was no reserved power to follow the property into which it had passed, excepting through the ordinary mode provided by law.

If she had deposited her money with a banker, it could hardly be contended that she might not be a witness between him and a third party, on the ground that peradventure the money recovered might strengthen his capacity to pay her deposit. A creditor is a witness for his debtor, although he may be the eventual gainer by it. Such an interest is too contingent to disqualify. His interest is not the direct consequence of the verdict, it only contingently results from it. This never disqualifies. Miss Cash-dollar could neither gain nor lose a cent by the verdict, as a necessary result of it, and was competent. It matters not what she may have thought; the competency of witnesses is tested by rules of law, and not by their opinions. The jury, it seems, believed the transaction to have been honest, and found accordingly. We see no error in the admission of the evidence for their consideration.

There is an assignment of error to the charge of the court, but no part of the charge is given on our paper-books, and no bill of exceptions to it appears. It was most likely abandoned. We cannot further notice it.

Judgment affirmed.

Woodward, J., dissented.