being purchasers at their own sales, and thus be induced to act corruptly in relation to them, but it never could have been intended to place those persons in a worse position than others as to the collection of their own demands.3

In the case of Brown v. Gates, it was said to be the rule:

"That statutes are sometimes extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter, on the principle that what is within the intention of the makers of the statute is within the statute, though not within the letter, and that what is not within the intention of the makers is not within the statute; it being an acknowledged rule in the construction of statutes that the intention of the makers ought to be regarded."

In the case of United States v. Ninetynine Diamonds," the court reasoned as follows:

"The object sought by the legislature in enacting a statute, and the evil which it endeavored to remedy, may always be considered to ascertain its intent and interpret its act."

The cases taking the view above set forth. are so numerous that the doctrine has become settled hornbook law.

Now let us inquire what was intended to be remedied by the legislature when it modified or changed the common law line of descent and distribution, and at what evil was the legislature aiming? What was wrong with the old common law of descent and distribution? Surely the legislature could not see any evil in the old common law maxim or principle that precluded a murderer or anyone under him from tak ing the property of his victim. There was nothing evil or wrong with a rule of action like that. It was a rule that grew up under the experience of organized government for the protection and the well-being of society, in that it was to discourage rel

atives from murdering their kin, etc., in order to secure the property of their victim. California, Iowa, Tennessee and Indiana have passed laws which preclude a murderer from taking the property of his victim; almost every court appeared to be reluctant in granting the murderer the relief that he sought, and fully realized that it was an inherent wrong, in nearly all the cases which hold with the murderer.

Then what was the reason for our present statutes of descents? An examination of the common law line of descent and distribution discloses that some of the sons and daughters, upon the ancestor dying intestate, were cut off from the estate of the father or mother. Such a rule, under our sense of justice, is rigorous and unjust and can have no standing in this country. It was well adapted to the old English system from whence it sprang, but no reason was shown why it was just under our form of government. So the legislature, in its wisdom, concluded that it was no more than just that when the father or mother of a family died intestate, that the children, which deserved his or her bounty, should take the property share and share alike. If for any reason the father or mother had just cause to cut off a son or daughter, the statutes of wills would take care of that, but to have the law provide where decedent died intestate, that the children should not be treated alike, did not seem just, hence the change.

This was the evil that the legislature desired to remedy. There was not then and there is not now, according to our way of thinking, any evil in a maxim or rule that precludes a murderer from taking the property from his victim. Why then should the plainness and clearness of a statute read into it something that was never contemplated by the legislature a construction that is against a natural right and in favor of an inherent wrong, which can do nothing more than lead to absurd and mischievous consequences? The maxim is not inconsistent with or repugnant to any law

of the land. It is not an evil principle to be uprooted, but rather one that has asserted itself to such an extent that the states are placing it upon their statute books.

In summing up this matter, it seems clear that the common law maxim cutting off a murderer or anyone under him from taking the property of his victim, is not repealed by a change in the common law made by the modern statutes of descent and distribution because of the plainness or clearness of the letter of the statute, as it was never intended to be repealed and such was never within the contemplation of the legislature. T. A. WEINKE.

Condon, Oreg.

ADMISSIBILITY OF CONTRADICTORY STATEMENTS OF A SUBSCRIBING WITNESS IN A WILL CONTEST TO IMPEACH THE DUE EXECUTION OF THE WILL, AFTER PROBATE.*

Where a will has been probated on the testimony of the subscribing witnesses and the will and the proof filed as required by most of the Western states,' and which becomes a part of the record in the proceeding, is testimony of contradictory statements made by one or all of the attesting or subscribing witnesses, showing want of due execution of the will in conformity with the statute, admissible on behalf of the contestant, after offering the record of the probate of the will and the proceedings thereunder?

It is remarkable to find the paucity of leading articles and scarcity of decisions upon a subject which one would suppose had been the bone of contention and decision

*This entertaining and thorough investigation of a question of law which has received little consideration will no doubt interest many of our The writer is Judge J. W. Hocker, of readers. the Los Angeles Bar, formerly president of the Oklahoma Bar Association.

(1) Cal. Civil Code Pro., Secs. 1316, 1317.

in almost every state in the Union, but it remains a dominant fact that it has rarely been discussed and but infrequently been the subject of court decision.

This question can only arise when the contest is after probate. The burden in the contest of a will after probate rests upon the plaintiff or contestant.2 But not until after the petitioner has made a prima facie case.

"The same procedure is made applicable to a contest if the will has been admitted to probate as before. In both, the contestant has the labor oar as though he is attacking something which he must overcome by affirmative proof. Under such circumstances, I think the theory of the statute must be that the contest begins after the petitioner has made his prima facie case. In such case the burden would be on the contestant and all the provisions consistent and harmonious."

198

Sixteen years later the same court declared:

"If the contest raises an issue concerning the execution of the will, it may become necessary for the proponent in his rebuttal to again produce the evidence offered to the court upon preliminary hearing."

Certainly this would be "consistent and harmonious" procedure under the wellestablished principle of the law that the heirs of a deceased person can rest securely upon the Statute of Descent and Distribution, and that the rights thus secured them can only be divested by those claiming under a will and in hostility to them and showing that the will was executed with all the formalities of law, and that the testator possessed soundness of mind and memory. And this is doubly true taking into consideration the California statutory provisions relating to the preliminary proof before admitting the will to probate, and in the face of these provisions, it certainly cannot be claimed that there is a presump

thus presented, was as much open to contradiction or qualification by proofs of such of his declarations as were inconsistent with it, as it was in Townshend's case upon the trial of the issues before the probate. In our view of the question, the principle upon which the evidence in that case was excepted from the operation of the general rule excluding hearsay testimony, applies with equal propriety and force in this, and we think, therefore, that there was no error in admitting the evidence of Dr. Teackle's declarations for the purpose of rebutting the prima facie effect of his attestation."8

In the contest of a will, evidence of contradictory statements by the subscribing witnesses touching the fact of the execution of the instrument may be received as evidence in chief or direct evidence of the contestants, being as it is in the nature of negative evidence. In other words, the

And these facts must first be established either by the defendant and proponent by direct evidence or the record of the proceedings filed in the court upon the probate of the will, otherwise, the failure to establish these facts would put an end to the action to contest the will and revoke its probate, as there would not appear that there was anything before the court to revoke.

The declarations of subscribing witnesses to a will have been held competent to rebut the prima facie effect of their attestation."

It was said in Colvin v. Warford:

"In this case Dr. Teackle was the last in order of the three persons who witnessed the execution of the will offered in evidence with the probate, and it is clear that the probate could not have even the effect prescribed by the Act without some. presumption from his attestation in favor of the will. We hold, therefore, that the offer of probate of necessity brought forward, without other evidence upon which it was had, the presumption resulting from his attestation, and that the presumption

(7) Colvin v. Warford, 20 Md. 357, 387; Townshend v. Townshend, 9 Gill. (Md.). 373; Highberger v. Stiffler, 21 Md. 351; 14 Enc. of Ev. 786.

of proving which rests upon the party asserting it."

Evidence which would have been competent against the witness, had he been sworn, will be competent to overthrow the force of his declaration, offered in evidence, instead of his testimony. Why should his attestation not under oath have greater sanctity than his testimony Where his attestation is relied upon as proof of the instrument, it is to prove that the instrument was executed."

9910

In the case of Otterson v. Hofford, the subscribing witnesses had been sworn at the probating of the will. On the trial of the case, two of those witnesses were called and sworn and testified. The third subscribing witness was not called on either. side. However, one of the parties offered

(8) (9) McElwee v. Sutton, 2 Bailey (S. C.) 128; Boylan v. Meeker, 28 N. J. L. 274, 294, 297; Losee v. Losee, 2 Hill (N. Y.) 609; Boylan v. Meeker, 4 Dutch. 274; Reformed, etc., v. Ten Eyck, 1 Dutch. (N. Y.) 274; Otterson v. Hofford, 36 N. J. L. 129, 13 Am. Rep. 429; Bott v. Wood, 56 Miss. 136; In re Will Hesdra, 119 N. Y. 615, 23 N. E. 555.

Colvin v. Warford, 20 Md. 386, 387.

So that, like the knight-errant of old, it stalks aimlessly through the reports, use

ments inconsistent with the fact of the due execution of the will in his presence. The offer of this testimony was refused by the court, and upon an appeal, the court reversed the cause for that reason, stating:

"The evidence in question*** ought to have been admitted. The defendant did not call the third subscribing witness, but relied upon his ex parte affidavit as it appeared on the record made up by the surrogate in compliance with the act."11

Various courts have held when occasion required it, that the contestant may be permitted to make proof of the proceedings had for the probating of the will.12

Declarations of subscribing witnesses to a will have been held competent to rebut the prima facie effect of their attestation and evidence of contradictory statements by the witness touching the fact of the execution of the instrument may be received.13

There are but two American cases holding adversely to the views herein expressed, and those cases are based upon the decision in Strobart v. Dryden, an English Chancery case, which has been condemned by a long line of American cases, as well as by Professor Wigmore in his excellent work on Evidence.15

(11)

14

Otterson v. Hofford, 13 Am. Rep. 430, 432 (N. J.), 36 N. J. L. 129.

(12) Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 758, 759, 63 L. R. A. 319, etc., and note; Otterson v. Hofford, 36 N. J. L. 129. 13 Am. Rep. 430. 432; Abrahams v. Wilkins, 17 Ark. 321, 322.

(13) Colevin v. Warford, 20 Md. 357, 387; Townsend v. Townsend, 9 Gill. (Md.) 373; Highberger v. Stiffler, 21 Md. 351; McElwee v. Sutton, 2 Bailey (S. C.) 128; Boylan v. Meeker, 28 N. J. L. 274, 294, 297; Reformed, etc., v. Ten Eyck, 1 Dutcher (N. J.) 274; Otterson v. Hofford, 36 N. J. L. 129, 14 Am. Rep. 429; Bott v. Wood, 56 Miss. 136; In re Hesdra, 119 N. Y. 615, 23 N. E. 555; Losee v. Losee, 2 Hill (N. Y.) 609; Doe v. Sutton, 4 Barn. Adol 55 (Eng.); Boylan v. Meeker, 4 Dutcher (N. J.) 294; Abraham v. Wilkins, 17 Ark. 313; 2 Wigmore on Evidence, Sec. 1514; Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 758, 63 L. R. A. 319, note; Abbott's Trial Ev. (2nd ed.) 141-142; Smith v. Asbell, 2 Strobart's L. R. (S. C.) 145-6.

ing a conspicuous place in the rogues' gallery of overruled and doubted cases, and no longer authority for the proposition which it is cited to sustain.

Los Angeles, Cal.

J. W. HOCKER.

(15) Wigmore on Ev., Sec. 505, 514.

DIVORCE-CONFESSION BY DEFENDANT.

GARRETT v. GARRETT.

Court of Chancery of New Jersey. July 19, 1916.

98 Atl. 848.

(Syllabus by the Court.)

A defendant's confession of guilt in a divorce case is not such evidence as, by the law of this state, will support a decree.

WALKER, Ch. The petitioner sued for divorce from his wife on the ground of adultery alleged to have been committed by her on October 12, 1913, with a man named Preddie, at No. 128 West 139th street, in the city and state of New York. The defendant did not answer, and the master to whom the cause was referred reported adversely to the petitioner, who filed three exceptions to the master's findings.

The first exception is to the report by the master that it was proved to his satisfaction that the petitioner and defendant lived together as husband and wife in Troy and also in the city of New York from the time of their marriage until the petitioner left the defendant because he suspected her of being unduly intimate with Preddie, the date of which he appeared to be unable to fix, even the year in which he left her not being remembered by him; four or five years before was the nearest he could come to it. The ground of objection to this much of the report is that it appears by the deposition of the petitioner that he left his wife about four years before because he found out that she was not true to him, saying elsewhere that he did not remember the month, and that it was about six years before. He

said he thought it was about a year after they separated that he met his brother-in-law, who told him that she (the petitioner's wife) was living with Preddie at No. 128 West 139th street, New York City; that he went there and found out that it was true; that he went there, saw her personally, and asked if she was living with Preddie, and she said that she was, and did not want people to know that she was living the way she was; that she did not want people to know that Preddie was not her husband. Nothing of a controlling character is involved in the question presented by this exception. It may be dismissed, with the assertion that it is the petitioner's uncorroborated testimony.

And it is an inflexible rule in this state that a divorce will not be granted upon the uncorroborated testimony or admission of a party to the suit. Not only does this apply to the cause, but to every element in the proofs necessary to sustain it. Williams v. Williams, 78 N. J. Eq. 17, 78 Atl. 693; Hague v. Hague, 96 Atl. 579.

The second exception is to the finding of the master that it was not proved that the defendant committed adultery with Preddie at the time and place alleged in the petition, although it was proved to his satisfaction that the defendant committed adultery with Preddie at that address in the month of November following, and that she was then living with Preddie as his wife at the same place. As ground for this exception the petitioner insists that it appears by the deposition of his solicitor that the defendant admitted to him that she went to live with Preddie about five years before the deposition was taken, and said that she had lived with him ever since, which showed that she was living with Preddie in October, 1913, and that the master should have reported that she committed adultery with him on the date alleged in the petition. At best for the petitioner, the evidence of his solicitor merely recites the confession of a guilty wife, which, in and of itself, is not sufficient groundwork upon which to rest a divorce. A defendant's confession of guilt in a divorce case is not such evidence as, by the law of this state, will support a decree. Howard v. Howard, 77 N. J. Eq. 186, 78 Atl. 195. Such confessions to be evidence, must be corroborated, as to the fact or facts confessed, and not as to the confession being made. Kloman v. Kloman, 62 N. J. Eq. 153, 156, 49 Atl. 810. The solicitor's deposition relates to a conversation he had with the defendant, who called at his office in response to a letter from him, and introduced herself, and, in an

swer to questions propounded by him, made a detailed and circumstantial confession about leaving her husband and going to live with Preddie, all of which the solicitor repeats in his deposition. Now, as a divorce cannot be granted upon the uncorroborated testimony of the husband as to his wife's guilt, nor upon her uncorroborated confession of that guilt, it follows necessarily that the uncorroborated testimony, plus the uncorroborated confession, amount to no more than each standing alone, and are not legal evidence. True, both the testimony and the confession are admissible in evidence, but each must be corroborated in order to be effective as evidence in the cause.

There is nothing in the recent case of Hague v. Hague, supra (Court of Errors and Appeals) which militates against this view. In that case, as in Schaab v. Schaab, 66 N. J. Eq. 334, 57 Alt. 1090, the defendant was subpoenaed as a witness and examined on behalf of the petitioner. These were divorce cases, but what the defendants said under oath which went to prove the petitioners' case amounted to confessions of guilt made under oath. In each of these cases a divorce was denied in the Court of Chancery, and that court's decree in each was reversed. These reversals, however, were not based upon any ruling that the testimony given by the defendants alone and without corroboration was sufficient. On the contrary, an examination of each of these cases shows that the testimony given by the defendants was corroborated. In the Hague case, in the syllabus written by Mr. Justice Trenchard, who delivered the opinion of the court, it is laid down that the wife's testimony was corroborated by that of her husband and another witness, and quotations from the evidence are made in the body of the opinion for the purpose of justifying the statement made in the syllabus. In the Schaab case it was stated by Mr. Justice Fort, who wrote the opinion, that the defendant's testimony was admissible, as to the facts and circumstances concerning which she testified, and that it was entirely corroborative of the testimony of the detectives. This being so, the testimony of the detectives was, of course, entirely corroborative of hers. The law to be deduced from the cases on the question before me is that defendants in divorce cases may be called as witnesses by the petitioners, but that their testimony is insufficient for the granting of a divorce unless corroborated as to the fact or facts confessed.

The third objection, complaining that the master reported that, as it was decided by this