Dow v. Merrill , 65 N.H. 107 ( 1889 )

1. The election of the executor to testify was a waiver of the defendants' exception to the competency of the plaintiff's precedent testimony (Eastman v. Amoskeag Co., 44 N.H. 143), and also empowered him to testify generally in the cause as a matter of right. "Where an executor, being a party to a suit, has elected to testify in the cause, the court has no discretionary power to reject the proffered testimony of the adverse party, even though it relate to conversations between himself and the testator of which the executor has no knowledge, and which he could have no means of contradicting or explaining." Ballou v. Tilton, 52 N.H. 605. The grounds of this decision are, that the statute (Gen. St., c. 209, s. 16) says, in unambiguous language, that if an executor or administrator, being a party, elects to testify, the adverse party may testify, and that the discretion conferred upon the court by section 17 is limited to the admission and not to the exclusion of the testimony of the survivor; therefore the conclusion is, that whenever the executor or administrator elects to testify for any purpose or to any extent whatever, the adverse party may then testify generally and without restriction. The correctness of this view, so far as the matter of discretion is involved, must be conceded; but the conclusion arrived at is not free from doubt, inasmuch as it plainly defeats the purpose of the statute, and manifestly works injustice and oppression. It is now, however, too late to reconsider the question of the correctness of this interpretation, because, after calling attention to the design of the statute to put parties upon equal footing, and the obvious injustice of allowing the survivor to testify concerning the matter in dispute of which the deceased had knowledge, and thus to give evidence which the other party, being dead, could not contradict or explain simply because the executor has elected to testify upon a different and independent branch of the case concerning which the deceased could have had no knowledge, the court suggest legislative relief; but, as more than fifteen years have elapsed without the requisite legislation, the construction adopted in Ballou v. Tilton must be regarded as having received the legislative approval.

2. Dow's letter was properly admitted to contradict the executor. The objection to its admission taken at the trial was general and not special; and to a general objection to evidence the only question is, whether it is admissible for any purpose. Wyman v. Perkins, 39 N.H. 218. The defendants do not deny the competency of the letter for the purpose indicated, but they contend that inasmuch as it contained what purported to be a promise by the deceased to pay the plaintiff for his services, the jury should have been instructed that they could consider it only upon the question of the executor's credibility. However well founded this contention may be, it comes too late. No instructions were requested on this point; and if the defendants desired to have the consideration of the letter limited, as they now contend it should have been, they should have asked the court so to instruct the jury. Moore v. Ross, 11 N.H. 547, 557; Hayward v. Bath, 38 N.H. 183; State v. Flanders,38 N.H. 324; Wyman v. Perkins, supra; Boyce v. Cheshire R. R., 43 N.H. 627.

3. Dow being a competent witness as to the ownership of the colt, this exception has of course no validity.

Exceptions overruled.

CLARK, J., did not sit: the others concurred.