Hyde v. Gannett

Morton, J.

The statement of the defendants’ testator contained in the extract from his diary was already in evidence when the conversation between him and his wife was offered and excluded. In view of that fact it may be doubtful whether the -defendants suffered any injury by the exclusion of testimony 'tending to show that their testator had made the same statement to his wife. But we think that the ruling was right on the ground on which it was evidently put, namely, that the evidence related to a private conversation between husband and ■wife. St. 1896, c. 445, on which the defendants rely, is to be construed, we think, as removing, under the circumstances therein provided for, the objection to the admissibility of certain testimony relating to the deceased, and as authorizing the admission of such testimony when but for the objection thus removed it would have been'incompetent according to the settled rules of evidence, statutory and otherwise. At common law private conversations between husband and wife are inadmissible, and the statute making husband and wife competent as witnesses expressly recognizes this rule. Pub. Sts. c. 169, § 18, cl. 1. Dexter v. Booth, 2 Allen, 559 . 19 Am. & Eng. Encyc. of Law, 152. We cannot think that the Legislature, without referring in any way to it, intended by the passage of St. 1896, c. 445, to repeal the law as it previously stood in this particular.

Exceptions overruled.