1. Sec. 858 of the Revised Statutes of the United States, which
declares
"that in actions by or against executors, administrators, or
guardians, in which judgment may be rendered for or against them,
neither party shall be allowed to testify against the other as to
any transaction with, or statement by, the testator, intestate, or
ward unless called to testify thereto by the opposite party, or
required to testify thereto by the court,"
applies to the courts of the District of Columbia as fully as to
the circuit and district courts of the United States.
2. A. assigned to the amount of a certain loan his interest in a
policy of insurance upon his life to B., his creditor. The latter
agreed in writing to make such a settlement with A's
representatives as the case may require, should he, in the event of
A.'s death before the payment of the money, receive from the
insurance company the amount due on the policy. Other similar
assignments were from time to time made. The last assignment
imports an absolute transfer to B. of all A.'s right, title, and
interest in the policy and to the payments previously made
therefor, and all benefit and advantage to be derived therefrom.
Upon consideration of the evidence,
held that the
assignment must be construed as appointing B., upon the death of
A., to receive from the company such sum as would then be due on
the policy, and after reimbursing himself to the extent of his
loans to A., to pay the balance to the persons entitled
thereto.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This is an appeal from a decree of the Supreme Court of the
District of Columbia, dismissing a bill, filed by the personal
representative of Robert C. Page, for the purpose of securing for
the estate of the decedent the benefit of a policy upon his life
for $3,000, issued Nov. 22, 1866, by the American Life Insurance
Company of Philadelphia. The bill conceded that the defendant
Burnstine had an interest in the policy to the extent of any loans
of money by him to the assured, and prayed an account for the
ascertainment of such sums. The defendant resisted the relief asked
upon the ground that, at the death of the assured, he was the
absolute owner, by assignment, of the policy, and, as such,
entitled to receive, to his own use, the
Page 102 U. S. 665
entire sum which might be realized thereon. The amount due on
the policy, $2,676.33, was paid by the company into court, to abide
the result of this suit.
Among the depositions taken in the case was that of Burnstine.
He testified in reference to the alleged loans by him to Page and
the several assignments which he claims were executed to him by the
assured.
The preliminary question for our consideration is whether
Burnstine, on his own motion, can testify as a witness in the
cause. The contention of the appellant is that no party to an
action by or against a personal representative can testify against
his adversary as to any transaction with, or statement by, the
deceased unless called to testify thereto by the opposite party, or
required to testify thereto by the court. Rev.Stat., sec. 858. This
rule, it is claimed, applies to the courts of the District of
Columbia as fully as to the circuit and district courts of the
United States. The contention of the appellee is that his
competency is to be determined by secs. 876 and 877 of the Revised
Statutes relating to the District of Columbia. These positions
require careful consideration; and it is essential to a clear
understanding of the question, thus presented, to ascertain the
history of the several provisions now incorporated as well in the
Revised Statutes of the United States as in the Revised Statutes
relating to the District of Columbia, upon the subject of the
competency of witnesses in courts of justice.
To the third section of an act, approved July 2, 1864, making
appropriations for sundry civil expenses of the government for the
fiscal year ending June 30, 1865, a proviso is annexed,
"that in the courts of the United States there shall be no
exclusion of any witness on account of color, nor in civil actions,
because he is a party to, or interested in, the issue tried."
13 Stat. 351.
An act, approved on the same day, July 2, 1864, entitled "An Act
relating to the law of evidence in the District of Columbia,"
provides,
"that on the trial of any issue joined, or of any matter or
question, or on any inquiry arising in any suit, action, or other
proceeding in any court of justice in the District of Columbia, or
before any person having by law, or by consent of parties,
authority by hear, receive, and examine
Page 102 U. S. 666
evidence within said District, the parties thereto, and the
persons in whose behalf any such action or other proceeding may be
brought or defended, and any and all persons interested in the
same, shall, except as hereinafter excepted, be competent and
compellable to give evidence, either
viva voce or by
deposition, according to the practice of the court, on behalf of
either or any of the parties to the said action or other
proceeding,
provided that nothing herein contained shall
render any person who is charged with any offense in any criminal
proceeding competent or compellable to give evidence for a against
himself or herself, or shall render any person compellable to
answer any question tending to criminate himself or herself, or
shall in any criminal proceeding render any husband competent or
compellable to give evidence for or against his wife, or any wife
competent or compellable to give evidence for or against her
husband, or in any proceeding instituted in consequence of
adultery; nor shall any husband be compellable to disclose any
communication made to him by his wife during the marriage, nor
shall any wife be compellable to disclose any communication made to
her by her husband during the marriage."
13 Stat. 374.
On the 3d of March, 1865, Congress passed another act upon the
subject of the competency of witnesses, entitled
"An Act to amend the third section of an act, entitled 'An Act
making appropriations for sundry civil expenses of the government
for the year ending the thirtieth day of June, 1865, and for other
purposes,' so far as the same relates to witnesses in the courts of
the United States."
The act declares that said third section of the appropriation
Act of July 2, 1864,
"be, and the same hereby is, amended by adding thereto the
following proviso:
provided further that in actions by or
against executors, administrators, or guardians, in which judgment
may be rendered for or against them, neither party shall be allowed
to testify against the other as to any transaction with, or
statement by, the testator, intestate, or ward, unless called to
testify thereto by the opposite party, or required to testify
thereto by the court."
Id. 533.
There is still another act which has an important bearing upon
the question before us. We allude to that portion of
Page 102 U. S. 667
sec. 34 of the Act of Feb. 21, 1871, creating a government for
the District of Columbia, which declares that
"the Constitution, and all the laws of the United States which
are not locally inapplicable, shall have the same force and effect
within the said District of Columbia as elsewhere within the United
States."
16
id. 426. This provision was not affected by the
subsequent displacement of the District government organized under
that act.
Thus stood the law up to the date when the two revisions -- one
the Revised Statutes of the United States, and the other the
Revised Statutes relating to the District of Columbia -- went into
operation.
If it be true, as argued, that the Supreme Court of the District
of Columbia, although organized under and by authority of the
United States, and possessing the same powers and jurisdiction as
the circuit courts of the United States, 12 Stat. 763;
Rev.Stat.Dist.Col., sec. 760, was not intended to be embraced by
the proviso to the third section of the appropriation Act of July
2, 1864, and if, as may be further argued, the Act of March 3,
1865, being, in terms, amendatory only of that section, was not
intended to modify the special act of the latter date relating to
this District it is nevertheless quite clear that, from and after
the passage of the Act of Feb. 21, 1871, if not before, the act of
March 3, 1865, became a part of the law of evidence in this
District. The legal effect of the declaration that all the laws of
the United States, not locally inapplicable, should have the same
force and effect within this District as elsewhere within the
United States, was to import into, or add to, the special act of
July 2, 1864, relating to the law of evidence in the District, the
exception, created by the act of March 3, 1865, to the general
statutory rule, excluding parties as witnesses. This is manifestly
so, unless it be that a statute affecting the competency of parties
as witnesses in actions by or against personal representatives or
guardians, in which judgment may be rendered for or against them,
is "locally inapplicable" to this District. But such a position
cannot be maintained consistently with sound reason. The same
considerations of public policy which would require the enforcement
of such a statute, as that of March 3, 1865, in
Page 102 U. S. 668
the circuit and district courts of the United States, without
regard to the laws of the respective states on the same subject,
would suggest its application in the administration of justice in
the courts of this District. Congress no doubt felt that the
general rule permitting parties to testify on their own motion put
the representatives of deceased persons at a great disadvantage, if
those proceedings against them by suit could, on their own motion,
testify as to transactions with, or statements by, the decedent. To
remedy that evil, the Act of March 3, 1865, was passed, and it
should not be held locally inapplicable to this District, simply
because it enlarges the exceptions to the general rule established
by the special Act of July 2, 1864.
These views do not at all conflict with the previous decisions
of this court, holding that certain provisions of the General
Statutes of the United States relating to the practice and
proceedings in the "courts of the United States" are locally
inapplicable to territorial courts. Those decisions, it will be
seen, proceeded upon the ground, mainly, that the legislatures of
the territories referred to, in the exercise of power expressly
conferred by Congress, had enacted laws covering the same subjects
as those to which the General Statutes of the United States
referred. It was, therefore, ruled that the territorial enactments,
regulating the practice and proceedings of territorial courts, were
not displaced or superseded by general statutes upon the same
subject passed by Congress in reference to "courts of the United
States."
Clinton v.
Englebrecht, 13 Wall. 434;
Hornbuckle
v. Toombs, 18 Wall. 648;
Good v. Martin,
95 U. S. 90. No such
state of case exists here. The reasons assigned for the conclusion
reached in those cases have no application to the question before
us.
Such being the law when the Revised Statutes of the United
States and the Revised Statutes relating to the District of
Columbia went into operation (which was on the same day), we are to
inquire whether Congress by those revisions made, or intended to
make, any change in the particular rule of evidence now under
examination. We are of opinion that no alteration of the previous
law was made or intended. The special act of July 2, 1864, relating
to the law of evidence in this District is reproduced
ipsissimis verbis in two
Page 102 U. S. 669
paragraphs, constituting secs. 876 and 877 of the District
revision; the Act of July 16, 1862, 12 Stat. 588, 589, the third
section of the appropriation Act of July 2, 1864, and the Act of
March 3, 1865, are consolidated into one paragraph, and, without
the slightest material change of language, constitute sec. 858 of
the Revised Statutes of the United States; and the provision
already quoted from the Act of Feb. 21, 1871, is reproduced in sec.
93 of the District revision. If we consulted alone sec. 876 and 877
of the Revised Statutes relating to the District, we should,
perhaps, be constrained to hold that, in the courts of the
District, parties could, upon their own motion, testify as well in
actions by or against personal representatives as in any other
action. But we cannot overlook the fact that, in the revisions, the
language of the previous statutes have undergone no change
whatever. We should not, therefore, permit the mere collocation or
rearrangement of the previous statutes in the new revisions,
adopted on the same day, to operate to change the law, and thereby
defeat the will of Congress. Rev.Stat.Dist.Col., sec. 1296;
Rev.Stat., sec. 5600.
For these reasons, we are of opinion that Burnstine could not,
on his own motion, testify as to any transaction with, or statement
by, the decedent, Page. His deposition as to such transactions and
statements must be excluded from consideration.
Upon the merits of the case, we waive any consideration of the
question suggested in oral argument as to whether Burnstine,
consistently with public policy, could acquire by assignment any
interest in the insurance upon the life of Page beyond such amount
as the latter actually owed him at the time of his death. No such
question is raised in the pleadings, nor was it suggested or
considered in the court below. We pass it by for the additional
reason that its determination is unnecessary in the view which the
court takes of this case.
The transactions between Page and Burnstine had their origin, it
is conceded, in a loan of money by the latter to the former. To
secure that loan an assignment was made of Page's interest in the
policy to the extent of the sum borrowed. Each subsequent
assignment shows, upon its face, a similar arrangement, until that
of Jan. 7, 1873, was executed. The latter assignment, by itself,
imports an absolute transfer to
Page 102 U. S. 670
Burnstine of all the right, title, and interest of the assured
in the policy, and to the payments made therefor, and all benefit
and advantage to be derived therefrom. But the circumstances
disclosed in the record indicate, with reasonable certainty, that
the real and only object of the execution of the assignment of Jan.
7, 1873, was to invest Burnstine with the entire control of the
policy, to the end that, thereafter, the company might deal
directly with him, and, upon the death of the assured, that he
might be invested with full authority to receive the proceeds of
the policy, and apply them in the repayment of such sum or sums as
he had loaned to Page upon the security of the policy. In other
words, the last assignment may be construed as simply appointing
Burnstine, upon the death of the assured, to receive from the
company such sum as would then be due on the policy, and, after
reimbursing himself to the extent of his loans to Page, to pay the
balance to the persons entitled thereto. A different construction
of that instrument would place Burnstine in the position of being
pecuniarily interested in the death of Page. Unless compelled to do
so, we should not suppose that he had any desire or purpose to
speculate upon the life of Page, or to do more than secure the
repayment of the money actually loaned by him to the assured.
This construction of the assignment of Jan. 7, 1873, is
fortified by other evidence. Cross, the local agent at Washington
of the insurance company, drew the assignment. In his deposition,
taken by the defendant, he testifies that Page admitted, about
December, 1871, his inability to keep up the premiums. Burnstine
was advised of these facts. Cross thereupon recommended to him
that, in order to save himself, he should secure an absolute
assignment of the policy. Nothing was said by the parties, upon the
occasion when the assignment was drawn, as to its consideration. If
the intention had been, upon the part of Page, to make an
unconditional sale, and upon the part of Burnstine, to make an
unconditional purchase, of the policy, something would have been
then said indicating such an intention. That portion of the
evidence, which we are at liberty to consider, tends to show that
Burnstine acted upon the advice of Cross, and took an absolute
assignment, with the object of saving himself -- a result which
Page 102 U. S. 671
can be accomplished by awarding to him, out of the proceeds of
the policy, such sum as will reimburse him for the loans made to
Page.
This conclusion is strengthened by the language employed by
Burnstine in his receipt of Oct. 2, 1868. In that paper, he
acknowledges the receipt from Page of six orders, for $50 each,
upon the disbursing clerk in the Post Office Department, and agrees
that in the event Page dies before the orders are paid, and he,
Burnstine, should receive from the insurance company the whole or a
part of the amount due on the policy, he "would make such a
settlement with his [Page's] representatives as the case may
require."
This obligation of Burnstine was not, in terms, withdrawn or
cancelled in any of the assignments thereafter executed, and the
receipt of Oct. 2, 1868, should not, therefore, be overlooked in
ascertaining the real purpose the parties had in the assignment of
Jan. 7, 1873. Our conclusion is still further strengthened by the
language in one of the conditions inserted in the policy (of which,
it must be assumed, the parties were aware), to the effect that
"in case of the assignments of a policy, whether as security or
otherwise, satisfactory proofs of the assignee's interest in the
insured life must be furnished with the proofs of death."
If the company, or Burnstine, understood that the latter, by the
assignment of Jan. 7, 1873, became entitled to the whole sum due on
the policy at the death of the assured, without reference to the
amount Burnstine had actually paid out, it would have been an idle
ceremony for the latter to have furnished proofs of his interest in
the assured life.
The decree must be reversed, and the cause remanded with
directions that an account be taken, as well of the sums actually
loaned or paid by Burnstine to Page upon the policy as security for
its repayment, as of all sums paid by him for the purpose of
keeping the policy in force, and for such decree as may be in
conformity to this opinion, and it is
So ordered.
MR. JUSTICE BRADLEY.
I dissent from so much of the opinion in this case as holds that
the act of Congress relating
Page 102 U. S. 672
to the admission of parties to testify in the courts of the
United States applies to the courts of the District of Columbia.
The act relating to that subject in reference to judicial
proceedings in the District covers the whole subject, and excludes
the operation of any general law unless the latter is made
specially applicable. The practice of admitting colored persons to
testify prevailed in the District courts from the organization of
the present Supreme Court of the District, and did not need the aid
of the general statute. The admission of parties to testify in the
courts of the District was provided for in a distinct and separate
statute relating to the District alone.
I concur in the judgment of the court notwithstanding the
evidence of the defendant.