Brown v. Johnson

There is but one serious question in this case, and that is as to the admissibility of the evidence of Adam Huber, the husband of the deceased, Ann Eliza Huber. He was produced as a witness for the plaintiff administrator, and gave testimony to the effect that he saw the securities in a bos in the bed chamber occupied by himself and the deceased on the day prior to her death, and also on the morn*663ing following. This testimony was objected to by tbe defendant on tbe ground that tbe witness was incompetent to testify, because be was the husband of tbe deceased. Tbe objection was overruled, and be gave tbe testimony referred to above, and upon it tbe plaintiff’s case depends. Ve think it clear that tbe testimony was rightly admitted. Tbe rule is familiar that, where the relation of husband and wife exists, neither tbe husband nor wife can be sworn either for or •against tbe other, save in certain specified instances which it is unnecessary to now enumerate. It is equally well established that when the relation of coverture has ceased, either from divorce or death, either party is a competent witness as to such facts as came to his or her knowledge during coverture, even in presence of the other, if it be not by a communication from the other which is confidential or private in its nature. Crook v. Henry, 25 Wis. 569; Bigelow v. Sickles, 75 Wis. 427. Such last-named communications are still preserved inviolate on the ground of public policy, but the rule goes no further. Williams v. Baldwin, 7 Vt. 503; McGuire v. Maloney, 1 B. Mon. 224. If the husband saw the securities in question in a box in his residence, even in his wife’s presence, it was a fact which he might testify to, because his knowledge was not acquired by any confidential or private communication from his wife. There was no confidence reposed in him by the wife by reason of the marital relation, and this seems to be the test.

It was suggested, also, that Huber’s testimony was improperly admitted because it detailed a transaction with a deceased person, and hence was inadmissible, under sec. 4069, E. S. 1878. As to this point it is sufficient to say that no objection upon this ground was made upon the trial.

Other objections and exceptions were taken to certain rulings on testimony, but they were not seriously relied on, and upon examination we have not found any of them well taken, nor of sufficient importance to discuss.

By the Court.— Judgment affirmed.