
    Hasbrouck v. Vandervoort and Hayward.
    At common law a husband cannot be a witness for the wife, nor the wife for the husband.
    This rule is founded upon reasons of public policy, and not upon the interest of the witness.
    The rule has not been changed or affected by the code of procedure.
    A husband, siuce the code, cannot be a witness for his wife’s trustee in a suit affecting her separate estate, although she is not a party to the suit, and he has no interest whatever in tbe event of the suit.
    (Before Oakley, Ch. J., and Düer and Paine, J. J.)
    April 16 ;
    May 10, 1851.
    The bill was filed by Stephen Hasbrouck as trustee of tbe separate estate of Adeline, tbe wife of William. L. Pickering. The cause is reported on tbe demurrer to tbe bill, ante page 74. After tbe demurrer w;as overruled, tbe defendants put in an answer, and issue was joined. Tbe cause came on to be -beard before Campbell, J., at tbe special term. Tbe plaintiff offered as a witness W. L. Pickering, tbe husband of bis cestui que trust Tbe defendants objected to bim as an incompetent witness. Tbe judge, after taking bis testimony conditionally, and considering tbe point, sustained tbe objection, and excluded tbe testimony. Tbe plaintiff not offering any other evidence, tbe judge dismissed tbe bill. From tbis decree tbe plaintiff ap-' pealed to tbe general term.
    
      W. O. Noyes, for tbe plaintiff.
    I. Tbe right of tbe plaintiff to recover on tbe case made by tbe bill, was settled when tbis cause was before tbe court upon the demurrer; and upon the bearing all tbe material facts stated in the bill, except tbe tender, were proved, and no defence was established.
    II. The only question now presented is, whether Mr. Pickering, tbe husband of Mrs. Pickering, for whom tbe plaintiff is trustee, was a competent witness in behalf of the plaintiff; and it is submitted that he was, and that his testimony should not have been disregarded, for the following reasons:
    1. The true reason why husbands and wives are not allowed to be witnesses for each other is, that they are interested in the event of the suit. The notion that they are inadmissible from policy, and irrespective of interest in the event, seems to be pretty much given up in England as well as .here. (Cowen & Hill’s Notes to Phil. Ev. 1555, and cases there cited; Norris’s Peake, on Ev. 247, ch. 3, § 4.)
    '2. There never was, in truth, any rule that a witness was excluded from testifying on the score of policy alone. In the case of husband and wife, there was, until recently, such an identity of interest, especially by the husband in the wife’s property, that he would be excluded from testifying in her favor on that ground alone, especially if she was a party to the suit.
    3.. In the present case, the trust under which the stock in question was held, with the income, was exclusively for the benefit of the wife during her life, with a contingent right of survivorship in the husband; and as the husband, prior to the filing of the bill, had released such contingent right, he had no interest whatever in the event of the suit. (Laws of 1848, p. 307, ch. 200; Laws of 1849, p. 528, ch. 375.)
    4. The bases relied on as excluding him, are chiefly the following : 1 Greenleaf’s Ev. §§ 344, 381; Davis v. Dinwoody, 4 T. R. 678; 2 Sand. S. C. R. 340; Barry v. Mercein, 8 Paige, 50; Windham v. Chetwind, 1 Burr. R. 424; Snyder v. Snyder, 6 Binn. 488; Burrell v. Bull, 3 Sand. Ch. R. 15; 1 Phil. Ev. 83. But these cases were all decided when there was less liberality in the admission of testimony, and before the adoption of the code, admitting interested witnesses to testify. (Code, §§ 351, 352.)
    5. Before the adoption of this rule in England, and even in Massachusetts, where the rigid common law rule as to interest still exists, a husband has been admitted as a witness in a suit brought by a trustee, for a trust fund, in which she was entitled to share. (Abercrombie v. Hickman, 8 Adol. & E. 683 ; Richardson v. Learned, 10 Pick. 261; Dyer v. Homer, 22 Pick. 253.) So the wife has been held competent against her husband, in a suit ,to which he was not a party, and where his liability was only contingent. (Fitch v. Hill, 11 Mass. 286.) This decision was founded upon Peake’s Evidence, 128. (Norris’s Peake on Ev. 254; Williams v. Johnson, 2 Strange, 504.)
    The rule was the same ,in Yirginia. (Baring v. Reeder, 1 Hen. & Munf. 154; 1 Green Ev. § 841, note 6, and cases there cited.)
    6. In this case, the husband has no interest whatever, nor is he a party to, nor can he be legally benefited by the result of the suit, nor is his wife a party. Besides, the whole legal and equitable title to the trust fund was in the trustee.
    7. Nor was the husband the person for whose immediate benefit the suit was brought, nor was the demand in suit, assigned for the purpose of making him a witness.
    III. There should be a decree for the plaintiff declaring that he is entitled to the stock as trustee, and directing the defendants to transfer it to him, and to account for the dividends received, with interest, and for costs. 1. The stock has been redeemed by the payments and receipts upon it. 2. A considerable surplus has been received from dividends for which the defendants should account. 3. They should pay costs, because they have set up an absolute claim to the stock, which was unfounded, and have relied upon an inequitable and unconscionable defence.
    
      J. M. Mason, for the defendants.
    I. The testimony of William L. Pickering, the husband of the cestui que trust, was properly excluded by the judge at special term, because he was one of the parties for whose immediate benefit the suit was prosecuted, and was, therefore, incompetent. (Code, § 399.)
    II. Mrs. Adeline Pickering would have been incompetent as a witness in behalf of her trustee, for the same reason, and Pickering’s relation, as husband, rendered him incompetent.
    III. The husband is excluded from testifying in a case where his wife’s rights, and interests are concerned, by reason of .the marital relation, and because it is contrary to public policy that he should be a witness in such a case, and not on the ground of interest. (Davis v. Dunwoody, 4 Term R. 678; 1 Greenleaf on Evidence, 384, § 334; Ibid. 389, § 341; The People v. Mercein, 8 Paige, 50; Erwin v. Smallen, 2 Sand. S. C. 340; Pillow v. Bushnell, 5 Barb. S. C. R. 156.)
    IY. Nor can the husband be a \yitness for trustee of his wife’s estate, where the legal title is vested in the trustee. (Windham v. Chetwind, 1 Burrow, 424; Snyder v. Snyder, 6 Bin. 483, 488; Burrell v. Bull, 3 Sand. Chy. 15; Hosack v. Rogers, 8 Paige, 242; Hopkins v. Smyth, 7 J. J. Marsh, 263; Hopkins v. Br. Bk. of Montgomery, 13 Ala. 455; Hale v. Dagan, 4 Ala. 696.)
    Y. The rule is not altered bjr the provisions of the code. The 398th section must be construed strictly, and so as to remove the disqualification of the witness, on the ground of interest only.
    
    'YI. But even if the testimony of Pickering is admitted, the bill cannot be sustained by the plaintiff. The testimony shows that the trustee had applied the stock according to the provisions of the trust deed, and that so far as this share of stock was concerned, the trust had ceased.
   Duer, J.,

delivered the opinion of the court.

Whether the testimony of W. L. Pickering, the husband of the lady for whose benefit as a cestui que trust this suit is brought, was properly rejected by the judge at special term, is the only question necessary to be considered. This evidence, if admitted, establishes the plaintiff’s case, and if rejected, leaves it wholly ■unsustained by proof.

This court has decided that the rule of the common law, which prohibits husbands and wives from being witnesses for or against each other has not been repealed, or in any manner affected by the provisions of the code. (Erwin v. Smallen, 2 Sand. Sup. C. R. 340.) The supreme court in the third district has made a similar decision, (Pillow v. Bushnell, 5 Barb. S. C. Rep. 156,) and we little expected that the question which these decisions involve, would again be raised.

It is true, that with the exception of those who are parties to the suit, or for whose immediate benefit it is brought or defended, the interest of a person offered as a witness, is no longer a ground of exclusion, and if the rule of the common law to which we have referred, rested solely upon the ground of interest, it might justly be considered as abolished; but such is not the foundation of the rule. It is founded, not upon the interest of the witness, but upon reasons of public policy, and these reasons so manifestly sound and just, that we are not at all disposed to relax the obligation or narrow the application of the rule to which they have given rise. On the contrary, we must hold it to be applicable in every case, in which the admission of the evidence has a tendency to produce the mischievous consequences which the wisdom of the law, in adopting the rule, has designed to prevent, namely, the interruption of domestic peace and harmony, and the destruction of that unreserved confidence which the marriage relation implies and requires. The peace and good order of society, the real strength of a nation, and the stability of its government, spring from the charities and the virtues of domestic life, and these will be found to vanish in the proportion in which the bonds of mutual trust and mutual affection, that should unite husband and wife, are severed or impaired. The discord and distrust that separate the parents are sure to reach the children. They lose their reverence for their parents, and their sympathy with each other, and the thoughts and feelings that should endear and sanctify their home, if not wholly unknown, are soon extinguished and forgotten. Hence the hardship that may result to individuals in particular cases from the operation of the rule, is not to be compared with the evils that would flow upon society, should the safeguard it has provided be overthrown .or abandoned. It may indeed be said, that these consequences are only to be apprehended, when it is against each other that husbands and wives are admitted to testify; but without adverting to other considerations, it. is a conclusive reply, that if the testimony, ■when favorable, is to be received, when adverse, it cannot be rejected. Such a distinction would be an anomaly in the law, and would, moreover, be a direct temptation to perjury,-and a pregnant source of injustice.

It was, however, contended by the learned counsel of the plaintiff, that although the rule of the common law may not have been changed, yet it is in truth only applicable when the husband or wife, for or against whom the testimony is offered, is a party to the suit, and that in all other cases in which the evidence has been rejected, the interest of the witness has been the sole ground of its exclusion; but we do not at all hesitate in rejecting such a limitation of the rule, not only as inconsistent with the principle upon which it is founded, but as plainly contradicted by many decisions. In Hosack v. Rogers, (8 Paige, 242,) the wife was not .a party to the suit, and had only an eventual interest in a fund created primarily for the benefit of creditors, yet the testimony of the husband, whose interest was contingent and barely possible, so far as it tended to enlarge the fund, was struck out by Chancellor Walworth as plainly incompetent. In Burrell v. Bull, (8 Sand. Chy. R. Rep. 15,) the bill was filed by the trustee of a married woman and related to her separate estate, yet the husband, who, it was admitted, had no interest whatever, present or future, vested or contin- • gent, was excluded as a witness by the vice-chancellor, upon the sole ground of public policy.

The strongest case, and that which meets and refutes the entire argument on the part of the plaintiff is, Davis v. Dunwoody, (4 Term R. 678.) It was an action of trespass against the sheriff, brought by the trustee of a married woman to recover the value of certain goods which the defendant had seized, under an execution against the husband. On the trial, the husband was offered ,as a witness to prove that the goods were not his property, but were a part of those included in the settlement, and to which the plaintiff had, therefore, a legal title, and he was admitted by the judge upon the ground that it was not in favor of, but against his own interest that he was called to testify, since the value of the goods, if retained by the sheriff, would be applied to the satisfaction of his own debt. Upon the testimony of the husband, the plaintiff obtained a verdict, but the court of King’s Bench set it aside and granted a new trial, without hearing the counsel for the defendant; and Lord Kenyon and Mr. J. Buller concurred in saying that “ independently of the question of interest, it is now considered a settled principle of law that husbands and wives cannot in any case be admitted as witnesses for or against each other.”

We are now required to overthrow a principle, which more than half a century ago these eminent judges considered as settled, and to create an exception from a rule, which, with no doubt or hesitation, they laid down as universal. To such a request, we have neither the disposition, nor, as we understand our duties, the power to accede. (See Langley v. Fisher, 9 Lond. Jur. 837, S. C. 14 Law Jour. 102; Snyder v. Snyder, 6 Binney, 483.) Although we must hold that the law is established and certain that the husband cannot be a witness for or against his wife in any suit touching her separate estate, whether she is a party to the suit or not; and vice versa, that she cannot be a witness for or against her husband in any suit in which he is directly interested; yet we are far from asserting that the positions upon which the plaintiff’s counsel relied are wholly destitute of authority, and certainly not of the semblance of authority.

Mr. Peake, in his law of evidence, has said, (Peake’s Ev. 128,) that in civil suits between third parties, the wife may be a witness to charge her husband, and in Fitch v. Hill, (11 Mass. 286,) this observation seems to have been understood by the supreme court of Massachusetts as meaning that the rule of exclusion is limited to the cases in which the husband or wife is a party to the suit. We doubt whether such was the meaning of Mr. Peake, and if it were, his observation is certainly not sustained by the single case to which he refers, (Williams v. Johnson, 2 Strange, 1041.) In that case the plaintiff sought to recover the value of certain articles which had been delivered to the wife of defendant, and the mother of the wife was admitted to prove that the articles had been delivered, not upon the credit of the defendant, but upon that of ber own husband. As her husband, however, was neither a party to the suit, nor interested in the result, it is manifest that the effect of her testimony was not to charge or in any manner prejudice him, but simply to discharge the defendant. It is true her evidence might have led to a suit against her husband, but in such a suit.she could not have been a witness, nor could evidence of her former declaration, although under oath, have been received. It cannot, therefore, be said that she was a witness against her husband, within the true meaning of the rule which excludes such testimony.

Much reliance was placed on the modern case of Abercrombie v. Hickman, (8 Adolph, and Ellis, 683,) in which it was alleged that the court of King’s Bench held the husband to be a competent witness in behalf of his wife, on the ground that if he was interested at all, his interest was only contingent; but upon an attentive examination of the case, we are satisfied that the true ground of the decision was, not merely that the husband had no interest, but that there was an entire deficiency of proof as to the interest of the wife herself. She was entitled to an annuity, her right to which was not in dispute, and it did not appear that the sufficiency of the fund upon which the annuity was charged, was at all dependent upon a recovery in the suit. For aught that appeared, her interest could not be affected, whatever judgment might be given. The husband, therefore, was not admitted as a witness for his wife.

So far as we have been able to discover, the only decisions that give any countenance to the argument on the part of the plaintiff, are the two cases in Massachusetts, of Richardson v. Learned, (10 Pickering, 261,) and Dyer v. Homer, (22 Pickering, 251,) and these, it cannot be denied, bear a very close analogy to the present. In each of these cases a husband was admitted to testify, in effect, on behalf of his wife, who, as a cestui que trust, was directly interested in the property or fund, which was the subject in dispute, and he was admitted upon the ground that his personal interest, if any he had, was remote and contingent. It is a circumstance, however, which greatly detracts from the consideration to which these cases might be otherwise entitled, that in eacb of them the question of the interest of the husband, is that which was alone'considered by the court, without the slightest allusion to the reasons of policy upon which, by the consent of all the English authorities, the rule of exclusion is in reality founded. Those reasons may have been overlooked or forgotten, but it cannot be said that they were deliberately rejected. If, however, without insisting upon this remark, we admit that Richardson v. Learned, and Dyer v. Homer, are evidence of the law as it now exists in Massachusetts, we are constrained to add, that they are a very plain departure from the law, which, in this state, has invariably been followed, and to which we hold ourselves bound to adhere. That law is, that husbands and wives are not competent witnesses for or against each other, in any suit, in which either is a party, or in the event of which either has a direct and certain interest. Whether the testimony must be excluded where the interest is only future and contingent, it is not necessary to determine, since in this case the interest of Mrs. Pickering is immediate and certain.

The judgment of the special term must, therefore, be affirmed, with costs.  