is incompetent. It, therefore, follows, the learned Judge was entirely correct in excluding the wit ness. Judgment affirmed. and guardians, and where the assignor of a thing or contract in action is dead. Then on what principle of sound interpretation, or of reason, can we apply the exception relating to actions by Opinion by MERCUR, J. WILLIAMS, J., ab- or against executors, administrators, and guardi sent. Nov. 26, 1875. Dissenting opinion by AGNEW, C. J., SHARSWOOD, J., concurring. ans, to a case of policy, such as the one before us. The reason of the exception as to actions by or against executors, etc., has relation only to that interest which an adverse party has in making The question of the competency of the wit-out his case against a deceased party, who cannot nesses in this case arose in Stoll v. Weidman, at be present to testify on his own behalf. Harrisburg in May last, and an opinion was writ ten by Justice MERCUR, substantially the same as that filed in this case. * Its effect was to overrule Dellinger's Appeal (21 P. F. Smith, 425). I shall, therefore, file my opinion in Stoll v. Weidman in this case, not having had time to revise it, except to add a couple of references to cases decided at this term. Having a great respect for the maxim stare decisis, I do not desire to appear in the attitude of overruling the former decisions of this Court with facility. This has been fully shown in Karns v. Tanner (16 P. F. Smith, 297), a case which has been followed constantly, until the principles ruled in it have become firmly embedded in the interpretation of the Act of 1869. What has the exception as to interest to do in a case of policy? Clearly nothing. Take the case of counsel called to testify to a confidential communication, in an action by or against an executor or administrator, and the client waives the objection. On what principle can the executor or administrator object to his testimony? It is evident that the excep To be filed in Taylor, Ex'r, etc., v. Kelly, tion as to actions by or against an executor or Western District, S. C. John Stoll Error to the Court of Common administrator does not apply to the witness who was excluded only on the ground of policy. The counsel has no interest, and the objection as to policy is removed by the client. So here the wife AGNEW, C. J., dissenting. has no interest. She is called against her interest This was an action by a husband against the and the exception as to policy excludes her only executor of his wife's deceased father to recover when called against her husband. She is here a boarding account. The wife had a large inter- called for him, and not against him. She has est in her father's estate under his will. She was neither interest nor policy against her, and the no party to the suit, and was called against her main purpose of the enactment makes her compeown interest to testify for her husband. Being tent. On what ground can the executor object no party and having no interest, it is clear she was to her? Her interest is on his side, and she does not incompetent, except on the ground of policy, not stand as an adverse party, to whom the execand on this ground she does not fall within the ex-utor may object, because his testator cannot conception of the Act of 1869, for she is not called to testify against her husband. But her exclusion on the ground of policy was forbidden by the Act of 1869, and, being called against her interest, she was competent before that Act, so far as interest is involved. The Act of 1869 is broad in its main intent to remove objections on the ground of interest and policy, and therefore we are bound in fairness and honesty to maintain it. Now, in the Act, each of these subjects of the main intent has its particular class of exceptions. The first refers to its correlative policy, to wit, husband and wife shall not testify against each other, and counsel shall not disclose the confidential communications of his client. The second class of exceptions relates to its particular correlative interest, viz., actions by or against executors, administrators, front her. She is but a witness, and the exception does not exclude her. But, it is said, the wife's feelings are with her husband, and against her individual interest. The question of feeling is disposed of by the law itself, which makes her a witness for her husband. Such an interest of feeling never did exclude. It always went to the credibility, not the competency, of the witness. It is, therefore, not a case within the exception relating to actions by or against executors and administrators. And so it was held in Dellinger's Appeal (21 P. F. Smith, 425), a case directly in point and which rules this. It is there said that the first exception is the one applicable to the exclusion, by reason of policy, and does not apply to the case of a husband called for the wife, for expressio unius est exclusio alterius; while the second exception applies only to parties or perSons excluded by interest, and not to those excluded by policy alone. That case was decided without a dissent, in 1872, and its principles recognized since, as will appear directly. To over turn it in three years on a principle of literal con- | peal (24 P. F. Smith, 47): "In construing a struction, repudiated in several subsequent cases statute (he says) the real intention when accuwill be a poor compliment to the maxim stare decisis. Diehl v. Emig (15 P. F. Smith, 320) is not in conflict, for there both husband and wife were parties, and the husband liable for the costs of the suit, as well as interested in the land in suit, as tenant by the curtesy. Gyger's Appeal (24 P. F. Smith, 48) is just as wide of the mark, for there the distributee was offered as a witness to relieve himself from a claim of the estate against him by testifying to matters in the lifetime of the decedent. He fell directly within the exception of the act of 1869, and Justice MERCUR cites Karns v. Tanner as authority. The attempt to rest the exclusion of the witness in the present case, on a literal reading of the Act of 1869, is directly opposed to several cases since decided, recognizing the principles of Karns v. Tanner, and holding that the legislative intent should govern. We may take the latest case, Tioga County v. South Creek T'p (25 P. F. Smith, 433), which utterly repudiates the idea of a literal interpretation of the Act of 1869. There Justice GORDON, speaking for the Court, holds that the policy of law which forbids proof of non-access of the husband by the wife, is not within the legislative intent, though within the very words of the law. He says: "The language of that Act (1869) at first blush might seem to include a case of this kind, 'no interest or policy of law shall exclude a party or person from being a witness in a civil proceeding.' But when we come to consider the fact that the 'interest or policy of law' which the Legislature had in view in passing that Act was that which before that time excluded parties from testifying in their own suits or where they had an interest in the subject matter in controversy, it becomes obvious that a case such as the one under discussion was not in the legislative mind when the Act was passed. It would, therefore, be an unnecessary and violent construction of the statute to make it include a policy of law wholly different from that under contemplation when it was framed." Just so here, it would be an unnecessary and violent construction of the exception as to suits by or against executors or administrators, to extend it to the case of a wife who is no party to the proceeding, who is called as a witness for the husband to testify against her own interest, and to her individual prejudice, and thus overturn the very letter and main purpose of the Act, which declares that no policy of law applicable to her as a witness shall exclude her. It strikes down the main legislative intent by perverting the exception to a purpose not intended, and thus falls within the ban of Justice GORDON'S decision. The rule now contended for, and stated by Justice GORDON, was also laid down by Justice MERCUR in the very late case of Eshleman's Ap VOL. III.-14 rately ascertained will always prevail over the literal sense of terms. When the expression in a statute is special or particular but the reason is general, the expression should be deemed general." On page 48 the Justice cites Tanner's case approvingly. In Pattison v. Armstrong (in the same volume, 476), Justice MERCUR not only cites Tanner's case, but quotes its principle in the very words of the Judge who delivered the opinion, and makes its application to a peculiar case, by holding that the witness is competent in a case where an intermediate vendee was dead, on the ground that the original vendee being alive his mouth was not closed, and his adversary therefore could testify. Another recent case sustains the principle, McGeary's Appeal (22 P. F. Smith, 365). Land conveyed to a wife was sold under a joint mortgage of herself and husband, and in a contest among creditors for the proceeds, the wife was held to be a competent witness for the creditors claiming the property as the husband's. In Dellinger's Appeal, now summarily overruled, the true intent of the Act of 1869 was sought for and established, but in this case the decision is rested on the letter of the statute, and any attempt to reach its true purpose repudiated, as if it were a novelty to try to ascertain the mind of the lawgiver. The language just quoted from Eshelman's Appeal would seem to be an answer to the new interpretation given to the Act of 1869; and yet another case decided at this term. Evans v. Reed, opinion by Justice MERCUR [2 WEEKLY NOTES, 175], is antipodal to literal interpretation. There in an action to which an executor became a party, by death, the testimony of the party taken at a former term was held to be good evidence, and the words of the Act were made to yield to its true intent, rather than that evidence should be lost by the mere letter. Evans v. Reed has been affirmed at this term in Speyerer v. Bennett, Ex'r of Bennett.* The contrast of these cases with this is marked. Here the testimony of a witness not a party to the suit, called against her own interest, is discovered to be against the mere letter of the law, and a decision of only three years' standing is overruled. The effect is to cause a loss of evidence and to strike down Justice while she stands pleading for the main intent of the lawgiver, that no mere policy should continue to work such wrong. In my judgment this attempt to be literal violates the main intent and true spirit of the law, as well as the very words of the principal enactment; rejects the most fundamental rule of interpretation, which requires us to seek the mind of the lawgiver, and unnecessarily sets aside that * Reported post, p. 213. wholesome maxim of stare decisis, which ought [See City to use of Morris, Ex'r, etc. v. Alsop, 1 WEEKLY NOTES, 473; Watson's Estate, 2 Id. 113; Crouse v. Staley, 3 Id. 83, and Bierly's Appeal, below.] Jan. '75, 154. three years from date, and the others respectively at intervals of one year thereafter. On December 2, 1868, John Bierly, on account of some dissatisfaction with his son Peter, executed a general power of attorney to J. Haines and M. D. Rockey, and requested them to withdraw his papers from Peter's hands, and to take charge of all his affairs. These gentlemen soon afterwards called upon Peter, and asked him for the papers. March 30, 1876. The latter got very angry, and at first denied having any of his father's papers in his possession; but finally admitted he had them, and refused to give them up. A few days afterwards he procured the revocation of the power of attorney to Haines and Rockey. Bierly's Appeal. Evidence-Act of April 15, 1869, § 1-Actions When, under the proviso to the Act of 1869, a person is incompetent to testify, the wife or husband of such person is also incompetent. An Orphans' Court decree, confirming an auditor's report, will not be reversed for the admission of incompetent testimony, unless it be clearly shown that the auditor was thereby led into some specific error. John Bierly died in August, 1870, leaving a will, dated June 9, 1862, in which his sons Peter and Samuel were appointed executors. They filed their final account in September, 1872, without charging themselves with the above-mentioned notes. Exceptions were filed by the other children and devisees of the testator, and the account was referred to E. P. McCormick, Esq., as auditor. Among the witnesses produced by the exceptants before the auditor was Emanuel Grimes, who testified, among other things, as to the delivery of the notes by the testator to Peter for safe keeping. Towards the close of his exami When two executors join in filing an account, they are jointly liable for a surcharge as to items of which both had knowledge. If one of them refuses to include such items, the other, to escape liability there-nation, counsel for the accountants objected to for, must file a separate account. Taylor v. Kelly (ante, p. 206), affirmed. Appeal from the Orphans' Court of Clinton County. This case was heard, in the court below, on exceptions to the auditor's report in the matter of the final account of Peter S. Bierly and Samuel Bierly, executors of John Bierly, deceased. his testimony, on the ground that, being the husband of Mary Bierly, one of John Bierly's daughters and devisees, he was incompetent to testify as to facts which transpired before the testator's death. They submitted that this case falls within the proviso of the Act of 1869, and the supplement thereto of April 9, 1870, § 1 (Purd. Dig. 625, pl. 20), which provide that the modifications in the former Act of the rules of evidence shall not apply in actions by or against executors, as to matters which happened in the testator's lifetime. Objection overruled, and evidence admitted. Evidence was admitted, under objection by the accountants, of various declarations of the decedent as to Peter's possession of his papers, and as to several purchases on credit from one Spangler, made necessary by Peter's refusal to pay him any of his income. The material facts of the case are briefly as follows: John Bierly, the testator, lived to the age of ninety-one years, and during the last few years of his life was extremely infirm both in body and mind. In the summer of 1866, owing to the fact that he had sold a piece of land at an extremely low price, forgetting entirely a previous offer much more advantageous, he became convinced of his inability any longer to transact business matters. On June 22 of that year, at his son Samuel's house, he delivered to Peter, another of his sons, all his business papers, in order that the latter might thereafter manage his estate. Emanuel Grimes, the husband of John The accountants alleged that these notes were Bierly's daughter Mary, was present on this oc- paid in full, partly in cash and partly in necessacasion, and made a careful list of the several ries purchased for the decedent, offering no vouchpapers which passed into Peter Bierly's posses-ers, but relying on the testimony of Peter Bierly, sion. Among them was a note of Samuel Bierly for $139, dated June 21, 1866, payable in one year, and seven notes of Peter Bierly, each for $200, dated April 1, 1864, and payable, the first, J. B. Rowe testified to declarations of Samuel Bierly, admitting Peter's possession of these notes subsequent to his father's death. Mary his wife, and Mary the wife of Samuel Bierly. Such of their testimony as related to events happening before the decedent's death was admitted under objection. Annie Bierly, daugh ter of Peter, and Harvey Bierly, son of Samuel, likewise testified to various payments by Peter to his father during 1869 and 1870. The auditor reported a decree surcharging the executors with the amount of the notes. The accountants excepted to this report on the ground that the auditor erred in admitting Grimes's testimony and the evidence of John Bierly's declarations in charging the executors with the amount of the notes, and especially in holding them jointly liable therefor. The Orphans' Court dismissed these exceptions, and confirmed the report. The executors took this appeal, assigning for error these actions of the Court. C. S. Mc Cormick, for appellants. Grimes was not a competent witness under the Act of 1869, for the proviso thereto expressly provides that the modifications in the Act of the rules of evidence shall not apply in actions by or against executors. The supplement to this Act repeals this proviso only as to matters occurring after the death of the testator. The declarations of John Bierly, made in the absence of the appellants, are clearly inadmissible against them. Romig v. Romig, 2 Rawle, 241. Scull v. Wallace's Executors, 15 S. & R. 231. ever, heard and decided at Pittsburg last year, overruled Dellinger's Appeal, and it was there held that when, under the Act of 1869, a husband or wife is incompetent to testify, the wife or husband of such party is also incompetent. This rule would exclude so much of the evidence of Emanuel M. Grimes as was admitted after the objection was made. It is also clear that the declarations of John Bierly, Senior, made in the absence of the appellants, were incompetent. Upon what principle they were admitted does not appear. The learned Judge of the Orphans' Court concedes that the admission of this evidence by the auditor was improper, but regards it as unimportant. So much for the evidence on the part of the appellees. On the other hand, Peter S. Bierly, one of the accountants, was examined, against the objection and protest of the appellees, as to matters occurring prior to the death of the decedent; and even to prove the vital fact of the payment of his notes to the latter. It is true he was called by the appellees. But it was only as to a single fact subsequent to the death of the decedent. This did not entitle the appellants to prove, by the crossexamination of the witness, his transactions with the decedent. It was clearly in contradiction of the Act of 1869, and of the decisions of this Court upon said Act. (Gyger's Appeal, 24 P. F. The weight of the evidence was strongly in Smith, 48; McBride's Appeal, 22 P. F. Smith, favor of the appellants. S. R. Peale, contra. Grimes's testimony was clearly admissible. Yeager v. Weaver, 14 Sm. 425. An Orphans' Court decree confirming an auditor's report will not be reversed for the admission of incompetent testimony, unless it be clearly shown that the auditor was thereby led into some specific error. But both Grimes's testimony and the declarations of John Bierly were as to matters fully established by other unexceptionable witnesses. Breneman's Estate, 15 Sm. 298. 480.) The wife of each of the accountants was also examined as to matters prior to the death of the decedent. They were clearly incompetent under Taylor v. Kelly. We have thus two assignments of error which, as a matter of law, must be sustained. We have also manifest error in the admission of evidence on the part of the appellants. As to the latter, there are no assignments of error, for the reason that the decree of the Court below was in favor of the parties objecting. Were the case here upon a writ of error to a judgment in a common law proceeding, it would, May 8. THE COURT. The witness, Emanuel perhaps, be our duty to reverse this case. But it M. Grimes, was perhaps competent under the is here upon an appeal from the decree of the authority of Dellinger's Appeal (21 P. F. Smith, Orphans' Court. We have the whole case before 425). He was not a party to the proceeding or us both as to the law and the facts. It is proa claimant upon the fund, and hence could not be vided by the second section of the Act of 16th excluded upon the ground of interest. He was June, 1836 (P. L 683), that "it shall be the called to testify upon behalf of his wife, who was duty of the Supreme Court of this Commonwealth a claimant and directly interested. Hence his in all cases of appeals now made, or that may exclusion rests upon grounds of policy. Dellin- hereafter be taken from the decrees of the several ger's Appeal ruled that the exception in the Act Orphans' Courts, to hear, try, and determine the of April 15th, 1869, does not embrace the case of merits of such cases, and to decree according to husband and wife testifying for each other, and the justice and equity thereof." It has, accordthat the public policy which had theretofore ex-ingly, been held that on an appeal from the final cluded such witnesses was removed by said Act. decree of the Orphans' Court to this Court, the The learned Judge of the Orphans' Court was whole proceeding in the case may be examined, right in following Dellinger's Appeal, for at that including the trial of a feigned issue to which no time it stood unshaken. Taylor v. Kelly, how-writ of error was taken. (Hallowell's Appeal, 8 Harris, 215; Finney's Appeal, 1 Wright, 323.) | further, that he was present upon two occasions If, then, we eliminate from this record all incom- when Peter S. Bierly paid the decedent money, petent evidence, and there yet remains sufficient to sustain the finding of the auditor, why should we reverse upon technical grounds? The only result would be delay and an additional expense to the estate. It was held in Breneman's Estate (15 P. F. S. 298), that an exception to the admission of an incompetent witness before the auditor was fruitless, unless it be shown that his testimony led the auditor into some specific error. This is the true rule. The application to the facts of this case is not difficult. No objection was made to the competency of Emanuel M. Grimes until near the close of his examination in chief. As no motion was made to strike out the portion of it given prior to the objection, strictly speaking such portion of it should stand. But it is wholly immaterial whether it stands or not. The only fact that he testified to of any importance was the delivery of the notes by the decedent to his son Peter for safe keeping. This is a conceded fact in the case, and does not depend upon the testimony of this witness; the allegation being that Peter had returned the notes to his father, and subsequently paid them; nor are the declarations of Bierly, Senior, essential to the case of the appellees. They refer chiefly to the possession of the notes by Peter, which, as before observed, is a conceded fact in the cause, and of which there was proof by his own admissions. The conversation with Spangler about the purchase of goods on credit was not material. The fact that he did buy the goods and did obtain a credit therefor from Spangler was in proof. It was competent, though of very little weight. It is manifest that the case of the appellees is not essentially weakened by striking out the entire evidence of these declarations, as well as the testimony of Grimes. We cannot say, therefore, that its admission led the auditor into any specific error. On the other hand, if the testimony of Peter S. Bierly, his wife, and the wife of Samuel Bierly is excluded, the case of the appellants is materially damaged. The direct issue was as to the payment of Peter's notes. If the evidence before the auditor, including the three witnesses above named, was not sufficient to establish the fact of payment, how can it do so with said witness excluded? "once in 1869 and the other time in 1870; don't know how much he paid either time; it was a nice lot; pretty large pile of bills." The auditor regarded the evidence of payment insufficient to establish such fact. We cannot say that he committed such clear error in this as would justify us in reversing his finding. No Court would disturb the verdict of jury upon such a state of facts as is here presented. We give to the finding of the auditor precisely the same weight. That there was a conflict of evidence does not help the appellants, unless it first be shown that the auditor made a clear mistake, or that the weight of the evidence was decidedly with them. This has not been established. On the contrary, the probabilities of the case were all against the appellants. When John Bierly gave up the possession of these notes to his son Peter he was about eighty-seven years of age. He had become wholly unfit to attend to business, and had recently sold a piece of land for a much less price than he had previously been offered for it. When the former offer was brought to his attention, he said that he then recollected it, but that his memory was so poor that he had forgotten it; that he was no longer fit to attend to business, and that he would give all his notes and papers to Peter to attend to for him. The notes were accordingly given to Peter, and for this reason; seven of them were Peter's own notes in his father's favor, the first one maturing April 1, 1867, the last one April 1, 1873. It was proved by disinterested witnesses that these notes were in Peter's possession in December, 1868. It appears, that for some reason, the old man had become dissatisfied, and, during the month referred to, Esquire Harris and Mr. Rockey called upon Peter with a power of attorney from his father to demand the notes. Peter was in the woodshed. He became angry, raised his axe, and threatened them. At first he denied having the notes, but when confronted with the evidence finally admitted that he had them and would not give them up. Samuel Bierly, one of the accountants, according to Rowe's testimony, admitted the possession of the notes by Peter after the decedent's death. There was an attempt by Samuel to explain this away by his testimony, but The only important witnesses left as to this his account is not very clear, and he was an infact are Annie E. Bierly, a daughter of Peter S. terested witness. There is not a particle of Bierly, accountant, and Harvey C. Bierly, a son written evidence of the payment of these notes of Samuel Bierly, the other accountant. Annie or of either of them-no receipts or vouchers Bierly speaks of three or four payments in the of any kind. In an ordinary case the possession year 1869, and mentions three sums, one of $200, of a note by the maker is prima facie evidence another of $190, and the other about $160. The of payment, but no such rule is applicable here. testimony of Harvey Bierly is indefinite. He says, upon one occasion, he heard his grandfather say that "Pete don't owe him anything," and The possession of Peter was the possession of his father. That possession certainly continued down to December, 1868, which was but about |