Canright, Garfield S.

English

Marquette University Law School

Marquette Law ReviewVolume 1Issue 2 Volume 1, Issue 2 (1917) Article 3Testimony as to Transcation or CommunicationsWith Deceased PersonsGarfield S. CanrightFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationGarfield S. Canright, Testimony as to Transcation or Communications With Deceased Persons, 1 Marq. L. Rev. (1917).Available at: http://scholarship.law.marquette.edu/mulr/vol1/iss2/3TESTIMONY AS TO TRANSACTIONS ORCOMMUNICATIONS WITHDECEASED PERSONS.By GARFIELD S. CANRIGHT.The questions which have arisen under Section 4o69 of theWisconsin Statutes are many and various. In Dilger vs. McQuade,158 Wis. 328, 333, Mr. justice Barnes says:"We have few statutes that the bench and bar havefound it so difficult to understand and apply as sec. 4069."It is not the purpose of the writer to consider all such ques-tions. Indeed, a reasonably adequate discussion of them wouldfill a good-sized volume. This article will be confined to onequestion arising under the statute, namely-Who is entitled toclaim the protection of the statute?Our answer to this question is not intended to be a statementof the law as established by the Supreme Court of the statebut only what appears to us to be the proper answer. So far asour reading has led us, we have found no actual decision of theSupreme Court of this state contrary to the views here expressed,although it is apparent from a few of the opinions, which willbe referred to later, that the court has not always applied them.For the convenience of those who may not have the exactwording of the statute in mind, we are printing herewith somuch of ihe statute as is necessary to a determination of thequestion:"No person * * * in his * * * own behalf or interestnor any person, * * * through or under whom a partyderives his interest or title, shall be examined as a witnessin respect to any transaction or communication by himpersonally with a deceased person * * *, in any civil actionor proceeding in which the opposite party derives his title,or sustains his liability, to the cause of action from, throughor under such deceased person * * * unless such oppositeparty shall first be examined or examine some other wit-ness in, his behalf concerning some transaction or com-munication between the deceased *** and such party orperson, * * *"MARQUETTE LAW REVIEWEvidence as to transactions or communications with adeceased or insane person is not per se incompetent. The restric-tion goes to the competency of the witness, not to the competencyof the evidence, and one is not an incompetent witness as totransactions with a deceased person no matter how interested hemay be in the action unless the "opposite party derives his title,or sustains his liability, to the cause of action from, through orunder such deceased person."Some doubt has been expressed among attorneys and by thecourts as to who is meant by the "opposite party." We believethere can be little room for difference of opinion as to this. The"opposite party" is the one whose interests are adverse to thoseof the party testifying; or, if the witness be not a party to theaction but the assignor or grantor of the party, the "oppositeparty" is the one whose interests are adverse to the party onwhose behalf the testimony is offered.The questions which seem to have perplexed counsel andthe courts more, are: What is meant by "derives his title" to thecause of action from a deceased person? What is meant by"sustains his liability" to the cause of action through a deceasedperson? For example:If an action of ejectment is brought against an occu-pant of land who holds under a deed from one who hassince died, can the occupant invoke the statute against theplaintiff? Does he sustain his liability through or underthe deceased?Can one who demands of the personal representativeof a deceased person a savings bank pass book as a giftinter vivos from the deceased, object to the competency ofthe personal representative as a witness to transactions orcommunications with the deceased bearing on the questionof the gift? Does the alleged donee derive his cause ofaction from the deceased?Where an alleged creditor of a deceased person attemptsto establish a claim against the estate of the deceased per-son, may the executor testify against the claimant as totransactions or communications with the deceased person?In a proceeding to probate a will, may the legatees orheirs of the deceased testify as to transactions with thedeceased?TRANSACTIONS WITH DECEASED PERSONSTo answer these questions, we must look to the history andpurpose of the section.At common law a party was not entitled to testify in his ownbehalf under any circumstances. His self-interest disqualifiedhim. After a long period of time, statutes were passed removingsuch disqualification. It was realized, however, that if after thedeath of a person another could sue the heirs or legal represent-atives of such deceased person or could defend in an actionbrought by such heirs' or legal representatives to enforce a rightbelonging to the deceased, and in either of such actions couldtestify in his own behalf as to conversations or transactions hadwith the deceased, it would afford great opportunity for personsto make unjust claims or defenses against the estates of deced-ents. So the right given to testify in one's own behalf waslimited by providing that such right might not be exercisedwhere the opposite party derives his title to the cause of actionor sustains his liability from, through or under the deceased asadministrator, heir or other representative of the deceased.This accounts for the arrangement of Sections 4o68 and4o69 in the statutes. Section 4o68 provides that one shall not bedisqualified to testify by reason of his interest. Section 4o69provides that one cannot testify in his own interest as to transac-tions with a deceased person where the opposite party deriveshis cause of action or sustains his liability from, through orunder the deceased. That Section 4o69 is intended only as anexception to the right conferred by Section 4o68 is shown evenmore clearly by Taylor's Statutes of Wisconsin (1871), page6oo, page 74:"A party to any civil action or proceeding * * * maybe examined as a witness on his own behalf or in behalfof any other party in the same manner and subject to thesame rules of examination as any other witness; providedthat the assignor of the thing in action shall not be exam-ined on behalf of said party nor shall a party to an actignbe examined in his own behalf in respect to any transac-tion or communication had personally by said assignor orsaid party respectively with a deceased person againstparties who are executors, administrators, devisees, heirsat law, next of kin, or assignees of such deceased personMARQUETTE LAW REVIEWSection 4069 therefore creates no new disabilities but ismerely a survival of the common law rule relating to testimonyby an interested party. To this extent the common law has notbeen abrogated. Any testimony in behalf of a party which wascompetent at common law is competent now.Hanf vs. Northwestern Masonic Assn., 76 Wis. 450.The section as quoted from Taylor's Statutes is also inter-esting as showing that at least originally the persons who couldinvoke the protection of the statute were only the personal repre-sentatives, devisees, heirs, next of kin, or assignees of thedeceased.The purpose of the statute is well expressed by Mr. JusticeDixon in Lawrence vs. Vilas, 2o Wis. **381, *386:"The object of the legislature is plain enough. It wasto prohibit a living party from testifying in behalf ofhimself, when, by reason of death, the other party to thetransaction, having had the same knowledge or means ofknowledge, cannot be present in court to confront him ormake his statement of the transaction."The purpose is even more tersely expressed by Mr. JusticeWinslow in Boyd vs. Gore, 143 Wis. 531, 535:"* * * because the mouth of one party is closed bydeath, it is only fair that the mouth of the other shouldbe closed by the law."With the history and purpose of the statute in mind, we wishto refer to a few cases for the purpose of applying the statute.Two cases-In re Valentine's Will, 93 Wis. 45, and Andersonvs. Laugen, 122 Wis. 57, are instructive particularly when takentogether. Both were proceedings to establish wills of deceasedpersons. In the first case the residuary legatee under the willwas not permitted to testify as to transactions with the deceased.In the latter case one of the proponents, an executor, but havingno interest in the estate, was permitted to testify to such transac-tions. In both cases the "opposite party"--the heirs of thedeceased-claimed under the deceased, but in the first case thelegatee had a financial interest in the estate which disqualifiedher, while in the latter case the executor had not. In both casesit was held, or assumed, that the heirs are "opposite parties" from68TRANSACTIONS WITH DECEASED PERSONSthose claiming under the will and as both the heirs and the lega.tees or devisees under the will claim under the deceased, neithercan testify against the other. This is manifestly sound in pro-ceedings for probate of a will, but it has apparently created animpression that where an action is brought by or against anestate of a deceased person a legatee or even an executor isincompetent to testify as to transactions with the deceased.Schultz vs. Culbertson, 125 Wis. 169, was an action againstthe executrix of one James Culbertson for the conversion ofcertain logs which the plaintiff claimed to have obtained by virtueof contract with Culbertson. The action was originally com-menced against Culbertson, but he having died, the executrix wassubstituted as the defendant. The lower court refused to permitthe executrix, who was also the widow of Culbertson, to testifyas to the conduct and conversations of the deceased for the pur-pose of proving mental incapacity. The Supreme Court held thatthe executrix could have testified to acts, conduct or transactionshad by the deceased withinher observation, if wholly unpartici-pated in or uninfluenced by her. The defendant in this case wasnot only executrix, but also had a financial interest in the estateof the deceased.In Will of Klehr, 147 Wis. 653, which involved a claimagainst the estate of the deceased based on a note which a sisterclaimed was given to her by the deceased as a gift, attorneys forthe claimant objected to the competency of the executor to testifyon behalf of the estate as to declarations of the deceased affectingthe validity of the gift. The court did not decide the questionsaying, at page 656:"The members of this court are not in accord uponthis question, and since the judgment below must be re-versed on other grounds we will not pass upon the com-petency of the executor to testify."Weissman vs. Weissman, 156 Wis. 26, was an action ofreplevin brought by the administratrix of the estate of her hus-band. She was also sole heir of the deceased. The administratrixwas permitted by the lower court to testify, over the objectionof the defendant, that the defendant brought the property inquestion to their farm, and said he gave it to them and theycould do what they liked with it. This was assigned as error.69MARQUETTE LAW REVIEWThe court indicated that if it had been shown that the witnessparticipated in the conversation she would have been incompetentto testify thereto.It will be observed that in two of the above cases the courtassumed that the executrix was incompetent to testify as totransactions with the deceased in which she took part, and inthe other case the court could not agree as to whether the exec-utor was incompetent to testify.In our view of the law, the executor or executrix in eachof the cases was competent to testify fully as to transactions withthe deceased. Why should not the executrix in Schultz vs. Cul-bertson testify as to conversations with the deceased? Theplaintiff (the opposite party), the one whose interests wereadverse to the witness, did not derive his title to the cause ofaction from the deceased so the statute does not apply. Theplaintiff may have obtained title to the property from thedeceased, but not to the cause of action. The cause of actionarose out of the acts of the deceased in converting the logs. Ifone violates the rights of another, thus giving rise to a cause ofaction, it cannot well be said that the other derived his title to thecause of action from the one who violated his rights.In Will of Klehr it did not appear that the executor had anyinterest in the estate. It is difficult to perceive, therefore, whyhe should be deemed an incompetent witness under Section 4069.But even if the executor had an interest in the estate, what reasonis there for disqualifying him? It may be true that the plaintiffreceived the chose in action, which was the basis of the suit, fromthe deceased, but the chose in action is quite a different thingfrom the cause of action. The cause of action did not arise untilthere was a failure to pay the chose in action in accordance withits terms. When the deceased failed to pay, in accordance withthe terms of the instrument, a cause of action arose, but it was acause of action which never belonged to the deceased but wasrather a cause against him. The cause of action from the timeof its creation was the property of the claimant. It cannot besaid, therefore, that she derived her title to the cause from theperson against whom it existed from the beginning.So also with reference to Weissman vs. Weissman--VWhyshould not the administratrix, although she was sole heir of the70TRANSACTIONS WITH DECEASED PERSONSdeceased, testify that the defendant had given the property to herhusband, at least insofar as the objection thereto was based onthe provisions of Section 4069?It is true, the court did not hold that the testimony wasincompetent, but it implies very strongly that if the decedentwere present at the time of the communication or transaction, thetestimony would have been incompetent.The court says:"Although the plaintiff claimed title under or throughthe deceased it was not shown that the decedent waspresent at the time this admission was made or that theadmission was part of any communication or transactionbetween the defendant and the deceased or between wit-ness and deceased. Counsel should have brought out thefact, if it was a fact, that the decedent was present, orthat the alleged admissions were part of a communicationor transaction between defendant and deceased. This heneglected to do."The fact that the plaintiff claimed title under the deceasedshould not disqualify her. The statute does not disqualify onewho claims under the deceased. It disqualifies one only wherethe "opposite party" claims under the deceased. The statuterecognizes that the one who does derive his title to the cause ofaction from the deceased may testify, for it provides, in substance,that if the opposite party who derives his title to the cause ofaction or sustains his liability thereto be examined, or examinesome other witness in his behalf, then the one who is adverse tothe representative of the deceased may introduce testimony. Ifthe one who claimed title through or under the deceased couldnot introduce testimony, there would be no reason for the lasthalf of the section.Furthermore, let us apply the reason for the statute asannounced by the Supreme Court, namely-It was to prohibit aliving party testifying in behalf of himself when by reason ofdeath the other party to the transaction cannot be present incourt to make his statement of the transaction.In the Weissman case why should not the administratrixtestify that the defendant had given the property to herself andher husband? The defendant's mouth was not closed by death.71MARQUETTE LAW REVIEWIf he did not give the property to the deceased and his wife, hecould so testify. The statute was not designed to close the mouthof the representative of the deceased, but of one making a claimagainst him.We submit for consideration this test: Who stands in theshoes of the deceased? If the deceased were alive and such actionshould be brought, would the testimony offered be to his financialinterest? Would the witness be testifying in behalf of deceased?If he would be, then the witness is competent to testify as to thetransactions with the deceased. If the testimony offered wouldbe contrary to the financial interests of the deceased, were healive, then the witness is incompetent.In most cases, the opposite party, against whom the testimonycannot be given, will be found to be the personal representative,heir, legatee, or devisee of the deceased, and the party disqualifiedfrom testifying will be the one having a claim against the estateof the deceased. Under our construction of the statute we can-not conceive of a case brought against or by the estate of adeceased person in which the executor or administrator of theestate would not be a competent witness to testify as to transac-tions with the deceased person, even though he be also a legateeor devisee under the will, or an heir of the deceased. This, webelieve, was the purpose of the statute. The result of any otherconstruction is, that not only is the mouth of the deceased closedby death, but also the mouth of those who act for him is closedby law. The manifest purpose of the law-was to afford protectionfor the estates of deceased persons, not to deprive them of allprotection. Our answer to the question under considerationtherefore is that the personal representatives, heirs, legatees anddevisees are the ones who are entitled to claim the protection ofthe statute and, except in proceedings to probate a will, thestatute cannot be invoked against them. As stated in the begin-ning, we do not know of an actual decision in a case in thisstate which is contrary to the construction given, though theinference to be drawn from the three cases cited seems to be atvariance therewith.

Testimony as to Transcation or Communications With Deceased Persons

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Testimony as to Transcation or Communications With Deceased Persons

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