
    [Lancaster,
    May 24, 1824.]
    GEBHART against SHINDLE and another, Executors of GEBHART.
    IN ERROR.
    It is no objection to the competency of a witness, that he has been found an habitual drunkard, in pursuance of the act of the 25th of February, 1819.
    The widow of the testator is a witness for the executors in a suit brought by them, where she has no interest in the result.
    In trover, by two executors, stating in one count a conversion in the testator’s lifetime, and in the other a conversion since Ins decease, one of the executors, the plaintiff, cannot make himself a witness by paying all costs that have accrued, and depositing fifty dollars, and offering to deposite whatever the court should think sufficient to cover the costs that might accrue: he still has an interest in his commissions on the estate, and the costs may be recovered back.
    
      It seems each case of this kind depends on its own peculiar circumstances.
    Error to the Court of Common Pleas of Lebanon county.
    This was an action of trover, brought by the defendants in error, the plaintiffs below, Peter Shindle and Adam Ritsher, executors of George- Gebhart, deceased, against George Gebhart, to recover four bonds of fifty dollars each, payable by John Steckbeck to their testator, and by him assigned to the plaintiff in error, his nephew.
    The point upon which the case turned was the validity of that assignment,—the éxecutors alleging that the testator was not of sound mind, memory, and understanding when the assignment was made. The declaration contained two counts. The first count was for a trover and conversion in the lifetime of testator, and a count for a trover and conversion since the death of testator. The defendant pleaded the general issue. All the evidence given at the trial was of a trover and conversion in the testator’s lifetime. The jury rendered a verdict in favour of the plaintiffs, and assessed the damages at six hundred and eighty-one dollars. At the trial, several exceptions were taken by the defendant to the admission of witnesses, and to evidence, but were all subsequently abandoned, except the following:—r
    1. The admission pf John Steckbeck, as a witness, who they alleged was incompetent, on the ground that he had .been declared to be an habitual drunkard and trustees appointed to take care of his estate, under the act of assembly of the 25th of February, ISI9.
    2. To the admission of Maria M. Gebhart, the widow of the testator, on the ground of interest. She was received as a witness, after having first sworn that she had elected to take under the will of her husband, by which he bequeathed to her certain specific legacies in lieu of her dower.
    
      3. The plaintiffs having paid all the costs that had.accrued, and deposited fifty, dollars to cover the costs that might accrue, and offered to deposit any further sum that the court would namq, u that sum was not considered sufficient, in which deposit they desired to be entirely governed by the court,—offered Peter Shindle, one of the executors and a plaintiff in the suit, as a witness, to whose admission the defendant objected, which objection was overruled, and the defendants excepted.
    
      Weidman and Norris, for the plaintiff in error.
    
      John Steclebeck having been declared an habitual drunkard, under the provisions of the act of the 25th of February, 1819, 7 Sm. Laws, 155, and his estate taken out of his hands and committed to trustees, the proceedings were in the nature of, and in effect a commission of lunacy, and rendered him incompetent. Drunkards are classed by Lord Coke, in his commentaries upon Lyttleton, Co. Litt. 247, among persons who are non compos mentis, of whom he says there are four sorts, one of which he enumerates to be 11 persons who by their own vitious acts deprive themselves of their memory and understanding, as he that is drunken.” Infants, lunatics, and persons who have not ordinary understanding, are not competent witnesses. It ought to have been proved to the court below that Steckbeck was a competent witness, and possessed of ordinary understanding; the record of his having been an habitual drunkard having been given in evidence to the court to support the objection. 10 Johns. Rep. 362. 1 Harrison’s Chan. 491.
    2. The policy of the law, which excludes husband and wife in civil suits from being witnesses for or against each other is applicable here. It has been decided, in a libel for divorce brought by the husband, that the confessions of the wife cannot be given in evidence to prove the fact of adultery. Phil. Evid. 67. Peake’s Evid. Appendix, 57.
    
    3. Peter Shindle was one of the plaintiffs in the suit, and liable for costs, and consequently had an interest in the event of the suit: he had, moreover, an interest in the money to be recovered in this suit, for the commissions to which he would be entitled as executor. The payment of the costs and the deposit, did not divest him of all interest in the suit. 1 Binn. 444. 7 Serg. & Rawle, 116 to 132. Patton v. Ash, 1 Yeates, 134.
    
      J. A. Fisher, and Fisher, for the defendants in error.
    The first exception is to Steckbeck’s competency as a witness. Mr. Justice Lawrence, in laying down the law with respect to the competency, of a witness, in Jordaine v. Lashbrook, 7 Term Rep. 610, (cited in Phil. Ev. 13,) says, “ I find no rule less comprehensive than this, that all persons are admissible witnesses who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and who are not influenced by interest.” In this case, it is not pretended that the witness was devoid of religious principles, or that-he had been convicted of any offence which rendered him infamous, nor did he want sufficient understanding. It it is admitted that persons who have not the use of their reason, as lunatics, &c., under the influence of their malady, are not competent witnesses. But even lunatics, and others who are subject to temporary fits of insanity, may be witnesses in their lucid intervals, if they have sufficiently recovered their understanding. Phil Év. 14, 15. In cases where an objection is made to a witness on the ground of lunacy, &e., it is the province of the court to decide whether there is any evidence, and to ascertain the competency of the witness from personal observation, and interrogation. The)r have the witness before them, and can best judge of his mind and intelligence from his conduct and answers to questions propounded to him. This principle necessarily excludes persons from testifying who are besotted with intoxication at the time they are offered as witnesses, but does not extend to persons who may be addicted to hard drinking, but are, at the time they are offered, perfectly sober, and possessed of sufficient understanding and recollection to detail what has passed upon the subject to which they are called to testify with clearness and precision. Hartford v. Palmer, 16 Johns. 143. The act of assembly of the 25th of February, 1819, relative to habitual drunkards, does not disqualify them from being witnesses, nor deprive them of any of their other rights as citizens: it only places their estates in the hands of trustees: the only only objects of the law being to prevent them from wasting their estates, and to preserve it for their families.
    [The counsel- were stopped by the court, in their answer to the second exception.]
    As to the third exception, it is contended by the plaintiffs in error, that Peter Shindle wras incompetent, on account of his liability for costs, and to commissions to which he would be entitled as one of the executors, on the money recovered by this suit. In this case the executors are not, and were not, liable to pay costs, the trover and conversion being in the life time of the testator. The law in England is well settled, that when the trover and conversion are in the life time of their testator, executors are not liable for costs, even when they are non-suited. 2 Saunders, 47, (R.) 1 Salk. 207. plea. 6. 3 Levinz, 60. 1 Stra. 682. But it may be objected that there are two counts in the declaration; true, but this we apprehend does not alter the case, the evidence given at the trial being only applicable to the first count; the case of Cockeril v. Kynaston, 4 Term Rep. 277, is.directly in point, and this court having the judge’s notes of all the evidence given at the trial before them, will satisfy themselves of that fact, and decide accordingly. If this is not the law, and not authority in this court, by which they will be governed in making up their opinion, still by the payment of all costs that had accrued, the deposit, and the offer to deposite any sum that the court would say should be deposited, if the sum deposited was not considered sufficient, and in which deposit they offered to be governed by the court, the witness was entirely divested of all interest, on the ground of liability for costs. Then as to the commissions to which he would be entitled on this money if recovered, this is not such an interest as will render a witness incompetent. For to exclude a witness on the ground of interest, there must be a direct and immediate interest, and not a possible or contingent one. The interest which an executor or administrator has, in money recovered for the estate of their testator, or intestate, is at most, a contingent interest, and not sufficient, even without a release, to exclude them as witnesses. The Orphans’ Court, may, on the settlement of their accounts, allow it, or they may not; it is optional with that court. This has been expressly laid down as the law by Justice Gibson, in the opinion delivered by him in Ash, Administrator of Craig, v. Patton, 3 Serg. & Rawle, 300. 6 Binn. 16.
   The opinion of the court was delivered by

Duncan, J.

The plaintiff in error has abandoned all the objections to this judgment, except the first, second, and third. The first is to the admission of John Steclcbeck, as a wtiness, on. the ground of ineompetency; he having been found an habitual drunkard, in pursuance of the laws of this Commonwealth. It is contended, that the inquisition and proceedings incapacitate him ipso facto, from being received as a witness; that the proceeding is equivalent to a commission of lunacy. This i's not so, his estate is taken out of his management, and committed; his person is not; the act of assembly intended nothing more. To render the witness incompetent, it must be shown that at the time of bis examination, he was non compos mentis, deranged in mind, from some cause, the effect of liquor, or any other cause. No drunken man should be permitted to give evidence. But this never can apply to drinking men, even though incapable of managing their estates. Men of the brightest intellect have fallen victims to this vice, who, when the effect of hard drinking has subsided, possess in their sober moments, their understanding, if not in its, full vigor, yet sufficiently unimpaired, to recollect, and to state the facts, where they do recollect, with clearness and intelligence. It was the policy of the law, to prevent habitual drunkards from wasting their estates, but it does not give them the protection granted to lunatics, as to exemption from punishment, nor deprive them of any of the other rights of citizens. If this was the ease, instead of operating as a means of reformation, it would dispose them to drink. The point of inquiry is the moment of examination; is the witness then offered, so besotted in his understanding, as to be deprived of his intelligence? If he is, exclude him; if he be a hard drinker, an habitual drunkard, yet, if at that time, he is sober, and possessed of a sound mind, he is to be received. At the time this witness was offered, we are to take it for granted, he was in that state of mind.

The second exception is to the admission of the widow of the testator. She had no interest in the cause, or in the question; she had a specific bequest which she elected to take, and had accepted; it could neither be diminished nor added to, be the cause gained or lost. But she is objected to on the score of policy of the law, which it is said, will not suffer the widow to give evidence relating to the estate. There is a recent desision, that, under particular circumstances, a wife divorced from the bonds of matrimony, has' not been suffered to disclose certain transactions of the husband during the intermarriage; without saying,- whether, in any case that rule would prevail here, I may say, it is novel. But that is not this case; here death has dissolved the marriage, and the testimony of a widow, free from interest, or releasing all interest, has been constantly received in questions respecting his estate, and even to prove his incapacity to dispose of his property. In the case of Nathaniel Irish’s will, his widow, releasing her interest, was a witness against the will. This objection was not indeed made, though the cause was in the hands of very able counsel, and every question made, which was considered as tenable. The policy of the rule, excluding husband and wife from being witnesses for, or against, each other, is founded on the supposed bias arising from marriage, and the consideration that the interest of husband and wife is the same, or from the supposed union of persons. Baker v. Dixie, Hardwicke’s Cases, 264. 1 Black. Com. 443. Fenn v. Lewis, 10 Johns. 44, or from, the necessity of preserving the peace of families. Neither of these causes applied here. The union was dissolved by death, the legal policy of exclusion no longer existed. This exception likewise fails.

But the third exception, the plaintiff in error has supported, which is, that Peter Shindle, one of the plaintiffs, was received as a witness. He certainly would have been liable for costs; for in the second count in the declaration, the plaintiffs have laid both the possession to have been in them, and the conversion in their own time, and in such case, if the executor fails, he is clearly liable for costs. Wilbraham v. Snow, 2d Wms. Saunders, 47, Note R. So far as respected the costs, he would be interested; to divest himself of this interest, he paid all the costs that had accrued, and deposited fifty dollars to cover all costs that might accrue, and offered to deposite any further sum the court would direct.' But here was another executor plaintiff; if there was a recovery against the defendant, there would be a recovery of all the costs,' and for both executors; he had then a remaining subsisting interest. It is a rule of the common law, that a party to a suit, whether he has an interest in the thing, or is merely a trustee, is not a competent witness; but where the person is a mere trustee, or having an interest which he has parted with, there in our courts, the costs being paid and release, he may be received as a witness. This relaxation Is liable to great abuse, and requires the utmost circumspection to prevent all the evils of introducing interested witnesses. In general the cases in which the party has been received, are when he has released every possible interest, and the costs have been paid, with an agreement on record, that in case of a recovery, they shall not be refunded. They have been paid, generally, not by the witness, but by the cestuy que use, and the court will expect the most satisfactory evidence of real divestment of interest, and actual arrangements between the nominal and real parties, if the costs be paid by the nominal party, that the real party will not refund them.

In the case of Patton v. Ash, &c. (7 Serg. & Rawle, 124,) ,the léading case of the admission of executors plaintiffs as witnesses,—Ash, previous to his admission as a witness, executed a release to the heirs of Craig of all claim to compensation by way of commissions, and paid to the prothonotary a sum of money sufficient for the payment of all costs that had accrued or might accrue, let the verdict be as it might; so that, in every event, the whole costs were paid by Ash, and he had agreed, that in no even.t was any part of-the money to be refunded. Very different from Ash’s state was the state of Shindle. He had entered into no engagement as to the absolute payment of the costs,—no agreement that in any event the costs were not to be refunded him'. But, more than this, he had not released the claim to compensation by way of commission on the sum which might be recovered in this action; for though compensation is not made to executors under the name of commissions, yet the Orphans’ Court, in making the allowance, are pretty generally governed by the amount of the estate, and it is always used as a measure of compensation. Ash had divested himself of all interest, actual or contingent; Shindle has not done so, and therefore was incompetent. There may be exceptions to the rule of admitting parties as witnesses, though they cannot be proved to be absolutely interested. These exceptions must be judged of from the circumstances in which each particular case stands. This executor had not stripped himself of all interest actual, certainly not of all contingent: it behoved him to do this before he could be received to testify; for where the rigid rule of the common law, in excluding all parties on the record, is relaxed to let in any party, the relaxation should only take place where it was very plain, that in no possible shape or form, in no event that could possibly happen, could he be in the smallest degree a gainer or ldser. All possible interest should be divested. This man did not stand in that relation of perfect indifference in point of interest, and ought not to have been admitted, and for this reason the judgment is reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  