Buuck v. Kruckeberg

Kruckeberg. v. Buuck 18,008. Rehearing Filed December dismissed [No. May 17, 1951.] Wayne, appellant. Flanagan Miller, Ft. for & McNabb, Robert Parrish and Thomas A. R. Clarence Wayne, appellee. for Gallmeyer, Ft. all of 31, 1947, January one Carrie J. On Crumpacker, Buuck, appellant here- C. Walter and her son Blume right of owners, joint tenants in, as were the city Fort real estate survivorship, certain Blume day the Carrie said Indiana, on said and Wayne, conveyed appellee deed her interest therein to the Kruckeberg. February Arthur C. Carrie Blume died on brought 14, 1948, shortly appellee and thereafter against co-tenant, alleged appellant, suit by way partition appellant, said real estate. The counter-claim, sought the cancellation of the deed of appel- January 31, 1947, which is the foundation of the right (1) partition, theory that: on the it was lee’s influence; through procured the exercise undue and (2) time its execution said Carrie Blume that at the pre-trial person At a confer- of unsound mind. was a agreed appellee entitled to the that it was ence if the deed in real estate involved partition of the upon against it made the attack was valid The found through appellant’s court counter-claim. judgment partition and such and decreed the deed valid grounds challenged it is not sustained that on the is now contrary evidence, to law that sufficient through error of the court at arrived it was competent excluding aof witness the entire testify viola- witnesses certain permitting privilege. tion of support in suit

In of his contention that the deed through influence procured of undue exercise he fact relies Blume, only that the and heir of Carrie son paid stranger to her fireside was a conveyed him property no consideration $18,000 although value market it had a reasonable executed deed was $20,000 the time said and that at body. seriously Such ill in mind Blume was asserts, the conscience situation, appellant shocks be imposition influence must or undue of picture the entire presented facts these If inferred. be there would we believe evidence by the disclosed Nye contention, Stayner v. appellant’s merit 231, ap 85 N. 2d but there Ind. E. pears story be more than above indicated. property house, The involved consists a 30 room upon stands, appellant the lot in which the nursing elderly and his mother conducted a home for people. nephew The a blood of Carrie jobs home Blume and for some time did said odd about performed occasional acts connection therewith comfort for his aunt’s kindness consideration in con and welfare. of the deed Prior the execution troversy appellant inquest had instituted an into sanity purpose his mother’s of which com was to asylum mit her to an and had also caused a receiver appointed to be business under which receiver manager he acted to the exclusion of as his mother. part Whether this conduct on the necessary justified toward mother was we are upon say. circumstances, however, not called The are that in our influence undue one of fact for the trial court and not one of law for us. appellant’s position

The in reference to his mother’s mental condition at the time she disputed executed the may deed be summarized as follows: All the medical experts agreed who testified that at such time Carrie mentally sick; Blume was that her trouble awas form insanity paranoia known which is characterized seemingly normal conduct and conversation one afflicted; only so tending evidence the case prove opinions lay her sound mind is the wit- they they nesses based what saw her and. do what say heard her and therefore such evidence is of no probative proof insanity value and leaves- the undisputed. may argument,

Whatever merit there be in this we premise do not believe that the which it is based

267 When the wholly supported the record. is seeking in proceedings an appellant instituted concerning quest mental condition mother’s his and examine her appointed Dr. Dunstone to a report is provided His report law. that he found states

record and substance signs delusions, mentally alert. She showed Blume memory was Her behavior. aberrant hallucinations or her, However, thinking found he clear. sound her and unreasonable, basically whole, irritable and on the get along therefore and potentially difficult to “mentally The test ill.” concluded that she grantor capacity is that to make a deed mental comprehend memory to mind and have sufficient shall to understand act and the nature and extent his engaged he and to which nature of business Keplinger v. thereto. in reference exercise his own will 517, E. 644. Even App. 65 N. 2d Ind. 116 Ward says Welty, member of paranoiac, Dr. another a Blume at the examined Mrs. panel physicians who mentioned, perfectly normal. inquest at times is above lay together with the This evidence sufficient, sane, in our who considered witnesses capacity mental of her opinion, to make January 31, indicated above meet test respect finding in its trial of fact court one thereto is final.

During course the trial called one William L. Hofius as a witness. He testified that chaplain he is and institutional minister conducting Lutheran Church and as such has been administering spiritual religious to the services patients Wayne in Fort needs of institutional since During regular he made calls a mem- 1943 who confined in of the Lutheran Church ber thereby nursing became well home Carrie Blume’s acquainted with her. In she asked him to conduct consisting there, message a service of a short and a prayer, doing he and has regularly did been ever morning. Thursday Necessarily since on each con- frequent tacts with Mrs. Blume were and in 1946 he change feeling observed an emotional in her. Her appellant, toward she whom had theretofore con- an praised ideal son constantly, completely sidered spoke reversed itself and she never of or referred to compelled by him unless to do the so nature of the subject conversation. He was the of violent tirades part quieted he, only on her and she when down the witness, spoke early to her in German childhood training. testimony On this the witness to was asked express opinion his as to the soundness mind of day January, Blume the 31st The objec- appellee objected question upon to the being tion sustained moved to strike testi- out entire mony which motion was also sustained. witness rulings upon

These were made theory that testimony of the witness concerned matters communi clergyman

cated to him as a as to which he is incompetent made an witness Burns’ 1946 Replacement, statute, 2-1714. The however, § incompetent only made the witness as to “confessions discipline admissions” made to him “in course of enjoined by” his church. It apparent is that the testi- mony of Rev. Hofius concerned neither a confession part nor an admission on the of Carrie Blume made to any him in the disciplinary course of enjoined action upon clearly him his church. He competent a witness and it was to testimony error strike out his opinion and to refuse to receive his based thereon as Knight to Carrie Blume’s soundness of mind. Lee v. 201; (1881), Gillooley (1877), 80 Ind. The State v. tacitly Ind. 182. The but admits this insists

269- (1) the error was harmless because: there testimony nothing any opinion in his reasonably based; sanity as to her have been could presume (2) to excluded it is unreasonable testimony to a different con- lead the court would have sanity Blume. of Carrie clusion as Upon the of the soundness' mind of a grantor time at execution of a deed the witness,

opinion lay intimately acquainted grantor years, for a with such number of who observed and conversed with her at has various inquired about, after the time times before and Folger App. admissible. v. Barnard 73 Ind. appellee’s disposes This rule 125 N. E. 460. us, contention above indicated which seems first given weight opinion goes an rather to the to be admissibility. After refused to its than express permit as to Carrie Rev. Hofius appellee attempted sanity, to cross-examine Blume’s given. already At this he had him on the (referring appel Judge said, “Now point court probative evidence here of counsel) there is lee’s any why be there should see I don’t kind or character. thereupon testi the entire And cross-examination.” in From this out. stricken mony of the witness was evidence, it had appellee assumes that cident in, the court’s not have influenced would remained any conclusively that indicates and decision ultimate indicates that record harmless. The was involved error by impression rulings prompted were court’s incompetent witness wholly dealing a it that was might given or testimony he had any therefore and nothing in findWe probative value. give have could toward attitude indicating the court’s record it believed had such been have would evidence this testimony therefore and his competent be witness admissible. It is true testimony that such would have been cumulative in effect if it had remained in record but that alone does not render its exclusion harm- less. State v. Hamer 211 Ind. 199 N. E. major Carrie Blume’s mental condition appel- issue case Rev. Hofius was one of the principal subject. lant’s witnesses He is intel- ligent by training experience in institutional possesses knowledge special beyond work that of the average lay good oppor- witness. He had as or better an tunity knowing Blume’s mental condition at Carrie the time in than other disinterested wit- ness in the case and his evidence should have been con- necessarily prejudicial. sidered. Its exclusion was Ralph R. Miller, C. Parrish and J. both of whom attorneys had been Blume’s Carrie in various trans- during lifetime, actions her permitted testify were concerning matters communicated to them in the course professional of their Ralph business. At her death J. appointed Miller executor of her estate and was so acting capacity when this case was tried below. In such privilege relying he amade formal waiver of by waiver court heard both him and long Parrish as to a series confidential communica- appellant tions. The insists that this was error in that statutory privilege protecting communications person lawyer deceased her can be waived personal representative only sup- executor other Ralph Miller, port of his That repre- trust. J. in his capacity, party is not a sentative to this suit and the property involved in no event can become an asset thereby Blume’s estate and a matter of her concern in connection with executor’s his trust. This is true, urged, because the and Carrie joint property title to said Blume held tenants with right appellee survivorship if the deed to the

271 surviving joint takes as such the is void If deed mother. of his the heir and not as tenant death Blume’s passed Carrie title before it is valid property con- interest have no can estate veyed. appellee the the contends hand the other

On right of communications between prohibit disclosure may belongs attorney the client who client right pleasure death and after his it at his waive personal representa- to the decedent’s accrues waiver supply evidence purpose the waiver is to tive if uphold acts. the decedent’s tends to which ap In our neither of these contentions is plicable right to the facts in this It case. is true the prohibit disclosure confidential communications attorney belongs

munications between and client to the client and after the client’s death accrues personal representative, to his but where client’s assigned has interest been and the client or his estate cannot, event, any any have interest in the matter assigned, proper say privilege seems assignee purpose waiver, transferred to for the merely so far as the affect communications the realiza Wigmore tion of transferred interest. VIII Evidence, (3rd ed.). Under the issues here § joined appellee’s trans realization the interest by dispute depends upon to him ferred the deed capacity to it. Her estate Carrie Blume’s mental make by of that way in no be affected the determination can right question. It follows that to waive therefore made confidential communications exclusion of lawyers tend to Blume to her would capacity mental deed rests establish her make such appellee. think the use Parrish with the We the exer as witnesses constitutes Miller right cise of his of waiver and the admission of their testimony was not error.

Because the erroneous exclusion of the judgment of Rev. William L. Hofius the is reversed and the cause remanded with instructions sustain the appellant’s motion for a new trial. J.,

Royce, J., Martin, opinion. concur

CONCURRING OPINION agree majority J. I with the this case Royse, be excluding must reversed because of error in testimony of my opinion the Rev. William L. In Hofius. necessary proper this all that or for this court 2-3233, Replace- decide in case. this Sec. Burns’ 1946 ment, providing part Supreme in as follows: “The may judgment below, Court reverse or affirm the part, whole or in and remand the cause to the court below, proceedings the court shall not reverse but (My to include the error.” than further first emphasis). express

I sufficiency to the evidence or on reasoning (not tenuous relied presented by parties) briefs of the holding permitting did err not R. C. Parrish and Ralph testify Miller to toas matters communicated to them in the course professional of their relationship with the decedent.

Martin, J., opinion. concurs in this Reported in 95 N. E. 2d Note. —

Case Details

Case Name: Buuck v. Kruckeberg

Court Name: Indiana Court of Appeals

Date Published: May 17, 1951

Citation: 95 N.E.2d 304

Docket Number: 18,008

Court Abbreviation: Ind. Ct. App.