
    LEAHY et al. v. TIMON et al.
    (No. 3273.)
    (Supreme Court of Texas.
    Oct. 29, 1919.)
    1. Witnesses <&wkey;>131 — Heirs incompetent to
    TESTIFY AS TO STATEMENTS OF TESTATRIX.
    Testatrix’s heirs suing devisees, including •executor, to contest validity of will, were incompetent to testify as to statements of testatrix, sucli action being one “arising out of any transaction with such decedent,” within Rev. St. art. 3690.
    2. Witnesses <3=»139(1) — Husband party to
    ACTION BY WIFE INCOMPETENT.
    In action by heirs of testatrix against devi-sees to contest validity of will, husband of one of the heirs, who was joined as party plaintiff, was incompetent to testify as to statement ■by testatrix under Rev. St. art. 3690, providing that “neither party” shall give testimony, in “actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent,” since husband, being a party, comes within prohibition.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by Cecelia Leahy and' others against. Walter F. Timón and others. Judgment for defendants affirmed by Court of Civil Appeals (204 S. W. 1029) and plaintiffs bring error.
    Affirmed.
    D. McNeill Turner and Jno. C. Scott, both of Corpus Christi, and Beasley & Beasley, of Beeville, for plaintiffs in error.
    Kleberg & Stay ton, G. R.- Scott, and Boone & Pope, all of Corpus Christi, Dougherty & Dougherty, of Beeville, and Claud Pollard, of Houston, for defendants in error.
    O. R. Wharton, of Houston, amicus curise.
   GREENWOOD, J.

This was a suit to contest the validity of the probated will of Mrs. Ellen Timón, deceased. It was brought by certain of Mrs. Ellen Timon’s heirs, including Ella Ellis, a daughter - of a deceased son of Mrs. Timón, and including Cecelia Leahy, a daughter of Mrs. Timón, joined by her husband, Phillip Leahy, against the devisees under the will, including Walter Fí Timón, a son of Mrs. Ellen Timón and executor of the will. The will was. attacked on the grounds first, that its execution was induced by the exercise of undue influence on the testatrix by Walter F. Timón; and, second, that the testatrix lacked sufficient mental capacity to make a will. Trials in’ the county and district courts resulted in verdicts and judgments sustaining the will, and the Court of Civil Appeals affirmed the judgment of the district court.

The principal question here presented is whether, under a proper construction of article 3690 of the Revised Statutes, this suit is an action by the heirs of a decedent arising out of any transaction with such decedent, the Court of Civil Appeals having affirmed the correctness of the refusal of the trial court to permit heirs of Mrs, Ellen Timón, viz. the plaintiffs Cecelia Leahy and Ella Ellis, to testify, at the instance of the plaintiffs, to various statements by Mrs. Ti-món to them tending to establish that Mrs. Timon’s action in making the will was the result of Walter F. Timon’s undue influence, or that Mrs. Timón was afflicted with mental incapacity. \

The contentions of plaintiffs ip error are that while this is an action by -the heirs of a decedent, in which the testimony excluded was that of heirs, who were offering to testify against opposite parties) without being called to testify by them, as to statements of the decedent, yet it is not such an action as comes within the operation of the statute, first, because only such actions as would establish a claim against the decedent’s estate or as would reduce or impair the estate come within the true meaning of “actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent”; and, second, because, unless an action arises out of'a transaction between the decedent and a witness offering to testify, it does not ¡arise out of a. transaction with the decedent within the true meaning of the statute.

Under the common-law rule no interested witness was competent to testify,^ and this court announced in Osborn’s Adm’x v. Cummings, ’4 Tex. 12, that the true test for ascertaining the interest of a witness was, as laid down by Greenleaf, “that he will either gain or lose by the direct legal operation or effect of the judgment, or that the record will be legal evidence, for or against him, in some other action.”

To change the common-law rule in Texas, the Legislature passed the act approved May 19, 1871, which provides: v-

“Section 1. That in the courts of this state there shall be no exclusion of any witness on account of color, nor in civil actions because he is a party to, or interested in, the issue tried.
“Sec. 2. In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.” Gam-mel’s Laws, vol. 6, p. 1010.

The' second section of the above act was construed by-the Supreme Court'to exclude the testimony of devisees in a suit brought by them to establish and probate a nuncu-pative will, wherein heirs of the decedent appeared and defended the suit. The court was of the opinion that the act was intended to safeguard the rights of all parties beneficially interested in the estate, and that hence it applied to a suit against heirs by. devisees. Lewis v. Aylott’s I-Ieirs, 45 Tex. 202.

The second section of the act was also held to apply to an action to subject property, which had descended to heirs, to a demand against their ancestor, on the ground that the heirs “stand in his place and are to be regarded as his representatives.” McCamp-bell v. Henderson, 50 Tex. 613.

The court refused to hold that testimony should be excluded, by virtue of section 2, in an action against a surviving partner, or in an action where the party defendant, who, offered to' testify, had disclaimed, because section 2, being a proviso to section 1, should be strictly construed. Roberts v. Yarboro, 41 Tex. 451; Markham v. Carothers, 47 Tex. 25.

By the Revised Statutes of 1879, section 2 was amended so as to read as follows:

“Art. 2248. In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called, to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

The above article is carried forward as article 3690 in the Revised Statutes of 1911.

Two changes were made in section 2 of the original act, -viz.: First, the provision was eliminated for admission of testimony of a proscribed party to transactions with, |or statements by, the testator, intestate, or ward, upon his being “requested to testify thereto by the court”; and, second, the provisions of the statute were expressly extended to include “all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

In our opinion the language of article 3690 does not admit of the restricted application for which plaintiffs in error contend.

There is nothing in the language to confine the operation of the statute to any particular character of action, by or against heirs or legal representatives of a decedent, arising out of any transaction with such decedent. On the contrary, the statute expressly declares that its provisions are to extend to aU actions, by or against toe parties named, arising out of any transactions with the decedent. This action is confessedly by heirs of a decedent, and it seems to us that it plainly arose out of a transaction with the decedent; for, under the view most favorable to plaintiffs in error, which is that their action arose from the making of the will, and that the making of the will involved a transaction between only Mrs. Timón and the two disinterested attesting witnesses, it cannot be denied that plaintiffs in error’s action arose from a transaction with the decedent. However, it may well be doubted whether so much of plaintiffs in error’s action as seeks to set aside the will as procured by undue influence can be properly said to arise from a transaction to which only the decedent and the subscribing witnesses to the, will were parties. At least that part of the action would seem founded, to a considerable extent, on a. transaction of the party exercising the undue influence with the decedent, and such party was one of the defendants herein.

It is not the language of the statute that the provisions thereof shall extend to actions by or against the heirs or legal repfe-sentatives of a decedent arising out of any transaction, of a party offering to testify with the decedent. All that is necessary to extend the provisions of article 3690 to an action is that it be one arising out of a transaction with the decedent, and be by or against the specified parties.

We think it equally plain that it was the intent and purpose of the statute to exclude the proffered testimony of heirs of Mrs. Ti-món in this action by them to contest the will.

The law, as originally enacted, shows the legislative determination that it would be unwise ,and unjust to receive, against those claiming under a decedent, the testimony of one directly interested, as a party, in a judgment, with respect to matters as to which his testimony, though false, would ordinarily be incapable of contradiction or explanation, unless called to testify by the opposing party, or unless required to testify by the court. Judge Gaines, in stating the reason for the exception made, in removing the bar of the common law, said:

“The transactions and conversations between two persons are often known to them only; and it would seem that the object of the exception made by the article from which we have quoted was to preclude the injustice of permitting one party to: the record to testify in regard to matters about which, from the very nature of the case, it was not probable tjiat his testimony could be rebutted. Death having sealed the lips of one of the persons who best knew and was most interested in the transaction, it would seem impolitic to remove the bar of the common law, which excludes the testimony of the other. This appears to be the reason and spirit of the 'article cited.” Moores v. Wills, 69 Tex. 112, 5 S. W. 676.

There can be no doubt that the purpose of the amendment of 1879 was to expressly extend, and not restrict,' the operation of the statute. Not only is am. extension af the am-plication of the statute declared by tne words added to the original enactment, but a further exclusion of» testimony necessarily results from omitting the words which authorized the reception of inhibited testimony, at the instance of the presiding judge. Nothing could well be further from the purpose of the legislation than to receive testimony of a sole heir, who had been disinherited by a. probated will, to transactions with, or statements by, his ancestor, in an action 'to recover the ancestor’s entire estate, when the same testimony would be excluded in an action by the heir to establish the smallest claim for money against the estate.

The Supreme Court of New Hampshire said in the case of Welch v. Adams, 63 N. H. 349, 1 Atl. 3, 56 Am. Rep. 521:

“The same injustice' that the statute seeks to prevent in other actions in which the executor is a party, by excluding the surviving party from testifying, will often be done in the trial of an appeal upon the probate of a will, if the contestant can testify to matters about which the testator, if living, might testify, and perhaps contradict or explain the testimony of the contestant.”

In our opinion, the previous decisions of this court remove all doubt as to the proper construction of the statute.

The questions under consideration have no relation to the subject-matter of the proposed testimony of parties, being statements to them by the testatrix. Hence the statute obviously commanded its exclusion “in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such,” unless called for by the opposite party. The opinion of Chief Justice Gould, in Parks v. Caudle, 58 Tex. 221, expressly declared the purpose of the clause added to the original act in 1879 in these words: '

“Before that clause was added to the statute, the decisions of this court had held its provisions applicable to suits by or against heirs, and it is believed that the purpose of the addition was to incorporate those decisions into the statutory law. Lewis v. Aylott, 45 Tex. 202; McCampbell v. Henderson, 50 Tex. 602.”

If the purpose of the act was to declare by statute, as had already been declared by judicial construction, that the language, which plainly commanded the exclusion of the offered testimony, applied to 'suits by heirs, we could not hold the testimony admissible without ignoring the law’s purpose.

We would have no inclination to depart from a decision carefully construing the statute soon after its passage; but the opinion of the court in Parks v. Caudle is entitled to peculiar consideration, in that, of the two associate justices then on the court, one, Judge Stayton, had been of counsel in the case of McOamnbell v. Henderson, in which the act *£ 1S71 was held to apply to suits against heirs, and the other, Judge West, was one of the commission whose work was the basis of the Revised Statutes of 1879.

The Supreme Court reached similar conclusions to those we have announced in Brown v. Mitchell, 75 Tex. 12-15, 12 S. W. 600, 607, as will appear from the statement of the nature of the action, the issue tendered, and the testimony held inadmissible, in the opinion of Chief Justice Stayton, as follows :

“This is a proceeding instituted in the county court for Tarrant county by John Mitchell and Lizzie Winters to set aside the probate of the will of Mrs. Lizzie Brown.
“Mitchell claimed to be the son of Mrs. Brown, and Lizzie Winters claimed to be an adopted daughter. Mrs. Lizzie Brown was the wife of appellant at the time of her death, and there was evidence tending to show that John Mitchell was her son by a former marriage. * * *
“The real issue' in this case was whether Mrs. Brown had testamentary capacity at the time the will was executed, and.on that question there was great conflict in the evidence. * * *
“Appellant proposed to testify in his own behalf to many declarations made to him by his wife before and after the will was made, which would have been admissible coming from a disinterested witness, but they were objected to on the ground that they were statements by the deceased which could not be proved by his evidence.
“This is, in effect, an action by the heirs of the deceased arising out- of a transaction with her, if they sustain to her the relation claimed, and we are of opinion that appellant can not be permitted 'to testify .to any statement made by her having bearing on this validity of the will in controversy. Rev. Stats, art. 2248.”

In Gamble v. Butchee, 87 Tex. 646, 30 S. W. 862, after setting out article 3690, then article 2248, besides two others, the court said:

“The provisions of the foregoing three articles apply to proceedings to probate wills. Martin v. McAdams [87 Tex. 226] 27 S. W. 255.”

In Sanders v. Kirbie, 94 Tex. 564, 565, 63 S. W. 626, the court, per Judge Williams, stated that the conclusion that article 3690, then article 2302, applied to suits to set aside a probated will appeared to be warranted by decisions applying the article in such suits; and the court cited Brown v. Mitchell, 75 Tex. 15, 12 S. W. 606, and Lewis v. Aylott’s Heirs, 45 Tex. 202.

Plaintiffs in error cite in support of their contentions the case of Martin v. McAdams, 87 Tex. 226, 27 S. W. 255, and the subsequent cases of Simon v. Middleton, 51 Tex. Civ. App. 543, 112 S. W. 441, Grelle v. Grelle (Civ. App.) 206 S. W. 114, and Byrnes v. Curtin (Civ. App.) 208 S. W. 407.

We do not thipk the decision in Martin v. McAdams is in conflict with our decision nor with'the previous decisions.

The questions we have considered depend entirely on the relation of the parties — witnesses to the issues tendered; that is to say, on whether they were parties and witnesses in a suit which is an action arising out of a transaction with the decedent, in the light of the issues tendered. Such questions were excluded from consideration before the. court made the pronouncements in Martin v. Mc-Adams, claimed to require the admission of the excluded testimony. Eor the court, in the opinion of Judge Gaines, prefaced such pronouncements with the statement that they were made in answer to the question as to whether the testimony there under consideration fell within the terms of the statute, upon the concession “that the witnesses whose testimony was excluded in this case were so related to the issue to be tried as to exclude them from testifying as to any transaction with or statement by the deceased whose will was sought to be established.” 87 Tex. 227, 27 S. W. 256. Manifestly a decision made on the assumption that the statute applied to a certain action cannot be decisive that the statute does not apply to such action.

What the ease of Martin v. McAdams does decide is:

“Testimony to the' opinion of the witness that a certain paper, which is offered as a will, is in the handwriting of the alleged testator, is not testimony as to any statement by him; nor do we think that it is testimony as to any transaction with him.”

While the opinion in Martin v. McAdams refers to the testator and attesting witnesses as the only participants' in the ordinary making of an attested will, and points out that devisees may have nothing to do with the execution of a will, yet it was nevertheless expressly recognized and stated that the mere making of a will is a transaction of the testator.

Moreover, it is hardly likely that the court would have declared at the very same term, in Gamble v. Butchee, that the statute applied to an action to probate a will if the opinion in Martin v. McAdams had been intended to announce the reverse of the proposition.

The opinion' in Simon v. Middleton, 51 Tex. Civ. App. 543, 112 S. W. 441, on motion for further conclusions of law, appears to have been based on certain expressions in the opinion in Martin v. McAdams, and the decision in that case to the effect that an action by devisees against heirs to probate a will is not an action by or against the heirs or legal representatives of a decedent arising out of a transaction with such decedent, being in conflict with the previous decisions of this court and our conclusions herein,. is overruled, as is the opinion of the Court of Civil Appeals in Grelle v. Grelle, 206 S. W. 114, in so far as it follows the authority of Simon v. Middleton.

The effect of this opinion is also to disapprove and overrule the conflicting portions of the opinion of the Court of Civil Appeals in Byrnes v. Curtin, 208 S. W. 407, wherein a writ of error was heretofore granted, the cause having been later dismissed under an agreement of settlement between the parties.

In Ross v. Kell, 159 S. W. 119, and Clark v. Briley, 193 S. W. 419, the Ft. Worth Court of Civil Appeals review with care the cases of Martin v. McAdams and Simon v. Middleton, and follow the opinions in Brown v. Mitchell and Sandlers v. Kirbie as controlling in requiring the exclusion of testimony substantially similar to that here offered by parties to proceedings for the probate of wills.

Plaintiffs in error urge that in no event should the testimony of Cecelia Leahy’s husband, Phillip Leahy, to statements by Mrs. Timón to him, have been excluded.

Phillip Leahy was a party to the suit, and as such comes within the prohibition of the statute that “neither party shall be allowed to testify against the other” to specified statements and transactions “unless called to testify thereto by the opposite party.”

In Parks v. Caudle, 58 Tex. 216, the suit was brought by Caudle and wife, in right of the wife to recover her separate property, and Caudle was held not to be a competent witness to prove a transaction with the decedent.

The exclusion of parties, within the meaning of the statute, has been extended to a husband separated from his wife, though not divorced, upon the ground of his being a proper party plaintiff. Heirs of Reddin v. Smith, 65 Tex. 26.

We have considered all other questions, and find that they were correctly determined by the Court of Civil Appeals, and require no further discussion.

The judgments of the district court and of the Court of Civil Appeals are affirmed. 
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