It is conceded that the deceased, on July 8, 1931, executed, on a form furnished to him by the insurance company, an instrument for the purpose of changing the beneficiary named in his policy from Caroline Fisher (hereafter called the defendant) to Pearl Fisher, Myrtle Sanborn, Edward J. Fisher, and H.J. Fisher, and that this instrument was received by the company on July 30, 1931, and a notation made thereon, "Policy not received; file for any legal effect it may have."
In John Hancock Mutual Life Ins. Co. v. Jedynak, 250 Mich. 88,90, it was said:
"It is well settled that if the insured wanted to change the beneficiaries and endeavored, in a writing signed by her, to accomplish such purpose, and was only prevented by the original beneficiary refusing to turn over the policy and the declination of the insurer to grant her written request without production *Page 107 of the policy, a court of equity will accomplish the clear purpose of the insured and frustrate contrary designs."
Plaintiffs sought to prove that the defendant refused to turn over the policy to the deceased by the testimony of Edward J. Fisher, one of the beneficiaries named in the instrument sent to the insurance company. In my opinion, the trial court committed no error in admitting this testimony and in finding that the omission of the deceased to send the policy to the company was due to the refusal of defendant to deliver it to him. It is undisputed that the deceased and defendant were husband and wife and that they had separated. He went to his home to get his personal effects, and the question asked defendant by Edward, "Why don't you give him (his father) what belongs to him and you leave him alone and he will leave you alone?" and her answer thereto that he should mind his own business occurred at that time. While the deceased was then present and doubtless heard the question asked and the answer thereto, in my opinion the statute (3 Comp. Laws 1929, § 14219) did not render it inadmissible. This statute, which prevents opposite parties from testifying as to matters which, if true, were equally within the knowledge of the deceased, has been in force for many years in this State. It was considered by Justice CHRISTIANCY in Wright v. Wilson, 17 Mich. 192, 201 (decided in 1868). It was there said:
"But the principal object of this prohibition, we think, was to prevent a living party from obtaining an unequal advantage, from his own testimony, upon matters known only to himself and the deceased, or better known to them than to others, and of which the deceased party can, of course, no longer speak." *Page 108
This statement was quoted with approval in Downey v. Andrus,43 Mich. 65, 71. While the word "assigns" did not then appear in the law, its later inclusion cannot well be said to affect its purpose as therein stated.
Statutes enacted for the same purpose have been construed in a similar manner in other States. In Wadsworth v. Heermans,85 N.Y. 639, 641, it was said that:
"The spirit and purpose of this provision of the code (section 829) is equality, to prevent undue advantage; and that purpose should be kept in view when border questions arise and lines of distinction are to be drawn."
In First Nat'l Bank v. Warner, 17 N.D. 76, 80 (114 N.W. 1085,1086, 17 Ann. Cas. 213), it was said:
"The reason of the rule laid down in said section is to protect the estates of decedents from false testimony which attributes to a deceased party statements or acts concerning which he cannot testify by reason of his death. A transaction, as used in this section, means a transaction in which the decedent took part and was a party to and participated in."
It has also been said that "To warrant the exclusion, the disqualification must clearly appear and not be a matter of inference." 1 Abbott's Trial Evidence (4th Ed.), p. 114.
We have discovered no authority directly in point. The cases cited and relied on by defendant (Wallace v. Fraternal MysticCircle, 127 Mich. 387; Great Camp K. O. T. M. v. Savage,135 Mich. 459; Shepard v. Shepard, 164 Mich. 183; andPerfect Cleaners Dyers v. Kirschbaum, 257 Mich. 430) all refer to statements made by deceased on which rights were sought to be founded. In this case no reliance is *Page 109 placed upon any such statement. That which is relied upon to prove that defendant refused to deliver the policy to the deceased is her answer to a question put to her by Edward. While made in the presence of the deceased, I can see no reason for the application of the statute to its admission. The deceased, while present, took no part in the conversation. Its purpose was to account for the failure of the deceased to forward the policy to the company with his request for a change of beneficiary.
The decree is affirmed, with costs to appellees.
CLARK, POTTER, NORTH, WIEST, and BUTZEL, JJ., concurred with SHARPE, J. FEAD, J., did not sit.