Stuhlmuller v. Ewing

39 Miss. 447

• Court: Mississippi Supreme Court
• Decided: October 15, 1860
• Status: Published

Opinion

Harris, J.,

delivered the opinion of the court:

The only question for determination here is, whether the wife, after the death of her husband, is competent to testify in favor of his estate against a creditor as to conversations between her husband and such creditor in relation to the contract upon which their dealings were based.

By the common law the incompetency of husband and wife on this subject is placed, first, on their identity of rights and interests, and second, on principles of public policy.

In its spirit and extent the rule is analogous to that which excludes confidential communications made by a client to his attorney, and therefore at common law the wife, after the death of the husband, has been held competent to prove facts not in their nature confidential, nor coming to her knowledge from the husband by means of the marital relation. See 1 Greenleaf Ev. sec. 338; also Coffee v. Jones, 13 Pick. 445; Williams v. Baldwin, 7 Verm. R. 506; Cornell v. Vanartsdalen, 4 Barr. 364; Wells v. Tucker, 3 Binney, 366; Saunders v. Hendricks, 5 Ala. R. 224; McGuire v. Maloney, 1 B. Monroe, 224; also the numerous authorities collected and reviewed in the very able argument of the counsel for defendant in error.

Our statute, Rev. Code, 510, having removed the incompetency arising from interest and her testimony not falling within the class of confidential communications, which, on principles of public policy, are held sacred, there remains no legal obstacle to its admissibility. In the case of Dunlap et al v. Hearn, 37 Miss. R. 471, these same principles are recognized.

Let the judgment be affirmed.