The question presented is, whether the plaintiff should have been permitted to testify as to the understanding between him and his wife as to the ownership of the shares of stock of which she had the legal title, either as a matter of right or discretion, to prevent injustice. It is said in Moore v. Taylor, 44 N.H. 375, and affirmed in Chandler v. Davis,47 N.H. 462, 464, that the design of the provision in the statute which excludes the survivors from testifying against the estate of a deceased party is to place the parties upon equal footing, and not allow the living party to a trade or transaction to be a witness in relation to it, when the other party to the same transaction, being dead, cannot testify. An application of this test to the present case shows it to be clearly within the reason and spirit, if not within the strict letter, of the statute. This exception to the general rule allowing parties to testify was intended for the protection of the estate of the deceased party, and not for the personal advantage of the administrator, and the surviving party is prohibited from testifying, not against the administrator personally, but against the estate which he represents. When an administrator is a party in his official capacity, he may testify, and permit the adverse party to testify, at his election, because he represents the estate of the deceased party, and the statutory exception being for the benefit of the estate, the administrator may waive it. But when the administrator acts in his individual right and against the interest of the estate, as in the case of the settlement of his personal claim or administration account, he stands like any other party claiming adversely to the estate. In such cases the estate is the defendant, and is necessarily represented by the parties opposing the claim as creditors, heirs, or legatees, and the administrator cannot testify as a matter of right. Perkins v. Perkins, 58 N.H. 405; Ela v. Edwards, 97 Mass. 318; Preble v. Preble, 73 Me. 362. It is suggested in argument that the contest in the present case is between living parties as to the ownership of the property in controversy, and therefore the case is not within the statutory prohibition. This suggestion is not well founded. The money and stocks standing in the name of the wife at the time of her death, and apparently a part of her estate, are claimed by the appellant as his property. The contest is between the plaintiff and the estate; the facts relating to the title to the property were within the knowledge of the deceased, and the claim of the plaintiff to testify as a matter of right was properly denied. *Page 472
The rule governing the court in the exercise of the discretionary power conferred by the statute, to admit the surviving party to a transaction to testify to prevent injustice, is stated in Chandler v. Davis, 47 N.H. 462,465, and has been approved and followed in numerous subsequent cases. In Chandler v. Davis, Perley, C. J. says, "we think that for ordinary cases the safe guide and the decisive test is found in the inquiry whether the deceased, if alive, could testify to the same matters. The intention evidently was, to guard the exercise of the discretion, permitted by the act of 1865, against the danger of admitting the survivors to testify when it would cause the inequality and injustice excluded by the positive and unqualified exception in the former statute. The language used for that purpose is strong and emphatic. It must appear clearly to the court that actual fraud or injustice would be the consequence of excluding the survivor, and the exercise of this discretion may, in all cases, be revised by the whole court. It was undoubtedly intended that the discretion given in such terms and with such limitations should be exercised with caution and reasonable strictness, and not so loosely as to infringe on the general principle that the surviving parties shall not testify to matters which were within the knowledge of the deceased, and to which he might have testified if he were alive." In the facts reported in this case there is nothing to take it out of the general rule. It is urged as a reason why the plaintiff should have been admitted to testify, that no other person living has any knowledge of the facts to be proved, and the true ownership of the money and stocks in controversy. This fact is a substantial reason for excluding the testimony rather than for admitting it. Chandler v. Davis, supra; Harvey v. Hilliard, 47 N.H. 551; Brown v. Brown, 48 N.H. 90; True v. Shepard, 51 N.H. 501. As a further reason, it is urged that the appellee released all claim to his sister's estate for the sum of one dollar, and unreasonably delayed instituting proceedings to charge the appellant as administrator with the property in controversy until after the death of the mother, thereby misleading the appellant, and causing him to neglect to obtain and perpetuate the evidence of his ownership of the property. This is a claim of estoppel, to which it is a sufficient answer that the essential element of concealment is wanting. All the facts were known to the appellant, and the release was given at his request. Besides, the acts of the appellee in delaying proceedings or releasing his distributive share could not bind the estate or the other heirs-at-law.
We think the testimony of the appellant was rightly excluded, and that he should be charged, as administrator, for the six shares of stock, and not for the money in the savings-banks.
Exceptions overruled, and decree of the probate court modified accordingly.
DOE, C. J., did not sit: the others concurred. *Page 473