76 Neb. 514 | Neb. | 1906
Enos S. Powell died leaving several heirs at law, who are also joint residuary legatees under his will, and among whom was Mrs. Hageman, wife of the plaintiff, who is plaintiff in error herein. For several years immediately preceding his death he had been a member of the household of the plaintiff, who filed in the county court a claim for the reasonable value of his hoard and lodging. Prom an order of the county court thereon there was an appeal to the district court, where a petition, alleging the claim, was put in issue by answer and the cause prosecuted to trial., Upon the trial the plaintiff made offers of proof, by his wife as a witness, both of which were objected to and both of which the court excluded: First, that she overheard a conversation between the deceased and her husband with reference to the former making his home with the latter and paying therefor;- and, second, that shortly before the death of her father she had a conversation with him in which he admitted having promised to pay her husband for the services, to recover for which the claim is prosecuted. There was a judgment for the defense, from which the plaintiff prosecutes error.
“Having in view the common law as to competency, and the mischief which this statute sought to prevent, it should be construed as if it read that no person having a direct legal interest in the result of an action shall be permitted to testify, when the party interested adversely to the witness’ interest is the representative of a deceased person.”
It is clear that the statute so read would not exclude the testimony offered on the trial of this case. But intermediate between the two cases cited is the opinion of this court by former Chief Justice Noeval in Kroh v. Heins, 48 Neb. 691, which is claimed to be inconsistent with' them. But the writer thereof cannot be supposed to have been forgetful of Wylie v. Charlton, supra, which he cites with approval, and without an attempt to distinguish or discriminate between it and the decision which
For these reasons, we recommend that the judgment of the district court be reversed and a new trial granted.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the' district court be reversed and a new trial granted.
Reversed.