#### Bennet Hester, et al. v. Zachariah Hester, et al.

The act of 1819, (Rev. c. 1004,) only applies to complete and finished instruments, but does not prohibit the introduction of parol evidence, to show that a paper writing offered for probate, was never in fact the will of the deceased.

A widow who dissented from her husband’s will, and had her dower and share of personal estate allotted to her as in case of an intestacy, is a competent witness to prove declarations made to her by her husband in his life time, as to the factum of a paper offered as his will, on an issue of devisavit vel non to which she is no party.

This was an issue of devisavit vee non upon a paper writing offered as the last will and testament of Benjamin Hester, tried at Granville Spring term, 1838, before Settee, Judge.

Several points were made in the court below, but at; only one was decided in this court, it is unnecessary to notice any of the others.

Upon the trial, the defendant offered to introduce as a witness, the widow of the deceased, to prove a conversation between herself and her husband in his life, (no person being present but themselves) in which her husband had expressed dissatisfaction with the supposed will, said that he had thrown it aside, and that he would send for two of his neighbors to help him arrange it more to his satisfaction. The witness was not a party to the suit, had entered her dissent in the County Court from the said supposed will — her dower and share of the personal estate had been allotted to her as upon an intestacy.

The introduction of this evidence was objected to by the counsel for the plaintiff and rejected by the presiding Judge upon two grounds : 1st, because of interest in the witness, and 2dly, because the policy of the law forbade her examination to prove any conversation between her husband and herself, such disclosure being a violation of that perfect confidence which the law for the security of domestic happiness designed to encourage and protect.

There was a verdict for the plaintiffs and the defendants appealed to this court.*

It was also objected in this court that such evidence *229was not admissible, as our act of 1819, (Rev c. 1004.) prohibited the introduction of parol evidence to revoke a written will.

Nash and Badger for the plaintiffs.

W. II. Haywood and Devereux for the defendants.

Daniet. Judge.

After stating the case proceeded as follows:

It is contended for the plaintiff, that parol evidence is inadmissible to revoke a written will; and that the witness should have been rejected on that ground— The answer to this objection is, that the act of Assembly only applies to an instrument which is finished, and was once incontestibly the writen will of the deceased; the law will not suffer such an instrument to be revoked by parol evidence. The act does not profess to prohibit parol evidence being introduced to show that a paper writing defectively executed, but still offered for probate as a will, was not in fact the will of the deceased.

Secondly, the plaintiff’s counsel still contends that the testimony of the widow was properly rejected; and relies upon the case of Doker v. Haster, (21 E. C. L. R. 416,) when the Chief-Justice of the C. B. decided that the widow could not be asked to disclose conversations between her and her late husband, the judge observing, that the hajipiness of the marriage state required, that the confidence between man and wife should be kept for ever inviolable. The plaintiff’s counsel relies also, on (2 Stark, 706.) It is a rule, that the husband and wife cannot be witness for each other, for their interest is identical; nor against each other, on grounds of public policy, for fear of creating distrust and sowing dissensions between them, and occasioning perjury; but the rule should not be extended to the exclusion of truth, beyond the limits within which the reason of the law calls for it. Now the identity of interest is destroyed, by the death of either the husband or wife; there is no longer any inducement to commit perjury ; as for sowing discord, that cannot take place with one that is dead; and distrust will not bo created by apprehension. *2300f that being made known, which there was no wish to. keep secret. The case of Doker v. Hasler was decided upon the authority of Monroe v. Twistleton, (Peakes Ev. Appendix, 44.) That case was one where the wife had been divorced, and the court said, if she could be permitted to give evidence of what liad been confidentially communicated to her during the marriage, to charge the man who had been her husband, in a civil action; she might also disclose confidential communications, and give evidence against him in a criminal matter; and that could never he endured; so her testimony was rejected. It does not appear to me that the case of Monroe v. Twistleton, was an authority to support the decision made in Doker v. Hasler. Furthermore, the case of Doker v. Hasler (if an authority to the extent for which it is adduced,) is at points with the case of Beveridge v. Mintor, (11 E. C. L. R. 521,) where it was decided that in an action of assumpsit against the executors of the husband, the widow was a competent witness to prove his admission.

thÉsuhjecttifcon-fidentiai commn-SeScarbrtdoes not apply to such •Wife“-Alfalew of being by her *231such as are made as to a matter of fact to be operated upon after his death, where it must be (he wish of the husband that such operation should be according to the truth of the fact, as established by his declaration.

*230Mr. Starkie says the principle is preserved, of adhering to the rule, even after the marriage tie has been dissolved by the death of one of the parties, (3 Stark. 706;) but the authority he relies on to support this proposition, Aveson v. Lord Kenniard, (6 East. 188,) does not bcar him out to the extent he has laid it down. I do not think, that the policy of the law forbids the introduction of the testimony which was offered by the defendant in this case.

The rule upon the subject of confidential communications is not denied ; the sanctity of such communications will be protected. Persons connected by the marriage tie have, as was said at the bar, the right to think aloud in .the Presence of each other. But the question remains, what communications are to be deemed coniiden-tial? Not those> we tMnk> wbich ai‘e made to the wife, to be by her communicated to others; nor those which tlic husband makes to the wife as to a matter of fact upon which a thing is to operate after his death, when it must bc the wisl1 of the husband, that the operation *231should be according to tlie truth of the fact, as established by his declaration. Suppose a husband to disclose to his wife, that he has given to one of their child ren a horse, can she not after his death prove that as against the executor ? Suppose also that the declaration to Avhich the wife was called had been made to her and another, there is no reason why she, if she will, may not testify to it, as well as the other. Why ? Because it is then apparent that it was not confidential between the husband and wife, in the sense of the rule. The same Reason equally applies, when from the subject of the conversation, it is obvious he did not wish it concealed, but on the contrary must have desired to make it known, and through her, if he found no other means of doing so.

The widow was not interested; she was not a party and had dissented from the supposed will, and had her share of both the real and personal estate assigned to her. If the supposed will was rejected, she was already provided for ; and if it should be established, she would not have less of the estate after her dissent, than she was entitled to by law, in case her husband had died intestate. Therefore,! think that neither interest nor policy stood in the way of the widow’s being introduced as a witness.

There were other questions of law raised in this case but we think it unnecessary to decide them, as we are of the opinion a newtrialmust be granted, because the Superior Court rejected the evidence of the widow of the deceased on the trial of the issue.

Per Curiam — JudgmeNT reversed.

*

The first point decided in this case was also so decided in Howel v. Barden, et al. (3 Dev. 442.)