EVIDENCE 1589

Person to whom alleged gift causa mortis is made cannot testify as to conversation
between him and donor as to what the gift was and the terms and conditions thereof.
Garner v. Garner, 171 Md. 616.

Cited but not construed in Wetzel v. Collin, 170 Md. 386.

The portion of this section disqualifying a party from testifying relative to trans-
actions with or statements made by the deceased, applied; witness being competent,
however, to testify to other facts. Russell v. Carman, 114 Md. 35; Lowe v. Lowe, 111
Md. 115; Koogle v. Cline, 110 Md. 607; Lanahan v. Cockey, 108 Md. 625; Zimmerman
v. Frushour, 108 Md. 119; Smith v. Humphreys, 104 Md. 288; Gerting v. Wells, 103
Md. 631; Cross v. Her, 103 Md. 596; Shipley v. Mercantile Trust Co., 102 Md. 657;
Brewer v. Bowersox, 92 Md. 575. And see Cacy v. Slay, 127 Md. 496; Temple v.
Bradley, 119 Md. 608; Bright v. Ganas, 171 Md. 500.

A witness may testify to transactions had with or statements made by the testator,
etc., if called by "the opposite party." Who is an "opposite party" within contempla-
tion of this section? Cross v. Her, 103 Md. 596; Duvall v. Hambleton, 98 Md. 15;
Whitridge v. Whitridge, 76 Md. 76. (Cf. opinion of the lower court, p. 62, and dis-
senting opinion, p. 87); Fpley v. Bitter, 34 Md. 651.

Where a defendant testifies at the first trial of a case, but dies pending an appeal,
plaintiff cannot testify at second trial to any transaction had with or statements
made by such defendant, unless called by opposite party, or unless the testimony
of defendant is put in evidence on second trial. Keyser v. Warfield, 103 Md. 169.

The admissibility of testimony depends upon the competency of witness at time
he testifies; hence, the death of a party before the hearing, cannot render inadmis-
sible testimony already taken. Armitage v. Snowden, 41 Md. 123.

A plaintiff in a suit against administrators is incompetent to prove her marriage
to intestate, either directly or indirectly. Bowman v. Little, 101 Md. 295. (Cf. dis-
senting opinion, p. 308; and see supplemental opinion, p. 317.) See also Redgrave v.
Redgrave, 38 Md. 96; Denison v. Denison, 35 Md. 381.

Act of 1902, ch. 495, did not except pending cases from its operation; that act, how-
ever, did not re-enact the provisions of the act of 1888, ch. 315, but made a radical
change in the law by which a party to a contract is permitted to testify where the
other party is dead, except in actions by or against executors or administrators in
which judgments or decrees may be rendered against them. Hence where a suit
was instituted in 1897, a man who was not then a competent witness, became com-
petent under act of 1902. Act of 1904, ch. 661, provided that it should not apply to
pending cases. Harford Natl. Bank v. Rutledge, 124 Md. 54.

This section does not make a husband incompetent to testify to transactions be-
tween his wife and a decedent in a suit by her against such decedent's estate because
the husband might be benefited by plaintiff's recovering. Marx v. Marx, 127 Md. 383.

Under this section, a party to the cause may not testify as to services she rendered
defendant's testatrix and amounts she received therefor. This class of testimony does
not fall within the principle that court will not reverse when competent evidence favora-
ble to plaintiff has been first excluded and afterwards admitted, because no injury
was done; counsel need not continue to object to like testimony in order to avail
himself of an exception. Giering v. Sauer, 120 Md. 297.

Under this section, testimony of plaintiff, the effect of which would be to show
that certain deposits in a savings bank to his deceased wife's credit were made with
his individual money in which she had no interest, and also testimony of one of
defendants as to acts and declarations of his deceased mother relative to earning
and deposit of profits from her business, are excluded; contra, as to said defendant
being sent to bank by his father with his deceased mother's savings. Martin v. Munroe,
121 Md. 684.

Parties held incompetent to testify to transaction with, or statements made by,
decedent; what transpires at a bank relative to a deposit in name of deceased party,
is within prohibition of the statute. Farmer v. Farmer, 137 Md. 72.

Party to cause held incompetent to testify to transactions with, or statements by,
decedent respecting gift or transfer of. money and property. Chase v. Grey, 134 Md. 626.

This section is not applicable to the trial of issues on caveats to wills; caveators'
and caveatees' evidence admissible. Hamilton v. Hamilton, 131 Md. 510; Griffith v.
Benzinger, 144 Md. 595.

In a preliminary proceeding to determine whether caveators have such interest in
the estate as entitles them to prosecute a caveat, executor may testify to' statement
made by decedent to him. Hendrickson v. Attick, 136 Md. 7.

Inability, in view of this section, of a party now dead to testify were she living,
to transactions had with, or statements made by, testator, etc., referred to in over-
ruling a demurrer on ground of laches; responsibility for delay. Safe Dep. & Trust
Co. v. Coyle, 133 Md. 352.

Who is a "party to the cause"?

Where a testator's widow as next friend of infant children files a caveat to the will,
she is a competent witness, not being a "party to the cause" within the meaning of
this section. Object, and method of interpretation, of this section. Johnson v. Johnson,
105 Md. 89; Trahern v. Colburn, 63 Md. 103.