Whitehead v. Kirk

Citations

• 104 Miss. 776
• 61 So. 737

Syllabus

<p>1. Husband and Wipe. Witnesses. Privileged communications. Declarations to each other in private. Presumption as to nature of communications. Testimony of party to establish claim. Wills.</p> <p>Neither husband nor wife will be permitted to testify about acts or words of the other, which acts or words were performed or uttered when they were alone, and were therefore to be deemed confidential, but where the acts and declarations of either are in the presence of other persons this rule does not apply.</p> <p>2. Same.</p> <p>Confessions of adultery, or the charge of infidelity, made in the privacy and under the confidence of the marriage confessional, are both protected and neither the husband nor wife can testify in regard to the same.</p> <p>H. Same.</p> <p>When the husband and wife are alone, everything said and done is under the protection of the rule, and the declarations and conduct of both are presumed .to be confidential. That similar acts occur and similar words are used in the presence of others raises no presumption that the presumably confidential declarations and conduct have thereby been released, and that those things said and done in privacy then become public property.</p> <p>4. Wills. Revocation. Presumptions.</p> <p>Where the will of a decedent is among his papers with the signature torn off, in such case the law presumes that this was done by the testator, and done animo revocandi.</p> <p>5. Wills. Witnesses. Competency. Claim against estate of decedent. Testimony of party to establish.</p> <p>On the trial of an issue of devisavit vet non, where the result of setting aside the will of a husband would • be to give the property therein devised to the wife, she was incompetent to testify as to acts and declarations of her husband made during his life tending to show testamentary incapacity, since under Code 1906, section 1917, providing that a person shall not testify as a witness to establish his own “claim” or defense against the estate of a dece