181 Iowa 527 | Iowa | 1917
Nicholas Simpson died intestate, October 21, 1912. Shortly before, on August loth of the same year, he executed to defendant a conveyance of the land on which he resided, said in the deed to be “45 acres more or less,” and by a witness to be about 33 acres. Therein a life estate is reserved to plaintiff, Mary Elizabeth Hart, and the conveyance is subject thereto. Simpson never married. Miss Hart was his niece, being the daughter of Simpson’s sister, and came to his home in March, 1878. For about a year and one half she had been an inhabitant of a poorhouse in Ohio, and, though she was never married, had a daughter, who was reared by others. She kept house for Simpson from
To establish the alleged agreement, plaintiff relied on her own testimony and that of the other Avitnesses. There is no controversy but that she kept house for Simpson, and helped about the place as farmers’ Avives ordinarily do, and cared for his mother (her grandmother), as claimed, and at the same time was provided a home and board and clothing for herself.
“Nate Updegraff solicited me to do housework for him. He came to Nicholas Simpson’s home about two years after I came there, and I heard a conversation between Nicholas Simpson and Nathan Updegraff, in which I took no part. Q. You may state to the court, in substance, the conversation. A. Well, Mr. Simpson told him that he did not want me to go; that he had no one to do anything for him — to keep house for him; and that, if I stayed with him, that everything was to be mine for my services. Nicholas Simpson said to Nathan Updegraff that he would fail to give me what he had promised if I went; that I was to stay as long as he lived and I lived. I was to do the housework, cooking and washing. I did not go to work for Nathan Updegraff. After that time I never accepted employment away from the home.”
II. Plaintiff was asked:
*531 3. Witnesses : competency: transaction with deceased: allowable inferences. “After your coining to the state of Lowa, .were you informed by any person that if you remained at the home of Nicholas Simpson and performed the service of a housekeeper and to assist in the taking care of the mother of Nicholas Simpson, that you should become the joint owner with him of the land which he then owned and of whatsoever land he might afterwards acquire? A. Yes, sir. Q. Were you so informed by any person other than Nicholas Simpson? A. No, sir.”
The answer first above was received over the objection, there being no ruling heretofore set out, and, as we think, cannot be considered. The statute prohibiting a party to any action from being examined as a witness as to any personal transaction or communication between such person and a person since deceased, against the assignee of such deceased person, cannot be evaded in this fashion. For a witness to say something has been done, and that none other than a named person did it, is equivalent to saying that such person did what was done. This method leaves nothing to inference, but is direct testimony of the fact proposed to be proven. None of the decisions go to this extent. In construing Section 4604 of the Code, it is well to bear in mind that it does not prohibit the witness declared to be incompetent from testifying, but from being “examined as a witness in regard to any personal transaction or communication” between the witness and deceased person. “In- regard to,” as here employed, means “concerning,” “with respect to,” or “about.”
One who denies, testifies in regard to the subject of denial quite as certainly as though he had affirmed. In re Will of Winslow, 146 Iowa 67. Swearing that none other than decedent had declared the matters specified, or done the particular thing mentioned, would seem equivalent to
III. After testifying to having received remittances of money from her father and brother in sums of $5 up to $20, in all about $500, she was asked:
“What did you do when they were sent to you — what did you do with the several sums of money as you received them ? A. A portion of it was used for my clothing, a portion of it for the house, and the balance of it was given to Nicholas Simpson. Q. You may state whether or not yon gave any part of this money to any person other than Nicholas Simpson. A. No, sir; I did not. Q. Was this money, or any part of it which you received from your father, used for the benefit of any other person other than yourself and Nicholas Simpson? A. It was not.”
These answers were received over the objection last above noted, there being no ruling. A motion to strike out the portion of the first answer referring to the giving of funds to Simpson must be sustained, for that the witness might not be examined as to this matter because of the prohibition of Section 4604 of the Code. This appears to have been conceded by the next interrogatory, which seems permissible under the decisions heretofore cited. McElhenney v. Hendricks, supra, was decided over twenty-five years ago, and, though its holding and that of like cases are open to
One B'itner testified that he was at Simpson’s house in July or August, 1912, and that he then said “he aimed for Elizabeth Hart to have it. He said if he hired her by the week that he would not have anything, because she cared for his mother and for the house; * * * that what money she got from her father, that she let him use it on the place.” On cross-examination: “He said that he aimed to leave her all of it, to Mrs. Hart, — all the land.”
Beman testified that he operated a hardware store; that, about 10 years previous, Simpson talked about buying
This is all the evidence bearing on the existence, of a contract such as alleged, and we are of opinion that it falls far short of the requirement that such a contract be established by clear, unequivocal and definite proof. Bevington v. Bevington, 133 Iowa 351. What Alsop related is entirely consistent with the theory that decedent merely intended to give the property if plaintiff continued in his service, and this is true of the story of Bitner. In neither conversation did decedent allude to any previous or existing arrangement with plaintiff, or that he was to bestow the property in pursuance of any obligation so to do. Bucli evidence, though indicating a favorable disposition and an existing design to leave the property to plaintiff, is consistent with the nonexistence of any contract so' to do. It is of little probative value. Stennett v. Stennett, 174 Iowa 431. Be-, man’s testimony is more satisfactory; for, if the statements were made as related by him, decedent, declared that he and plaintiff had equal interests in the land and kept a joint purse. This, though not referring to any previous arrangement between them, nor touching upon how such equality came about, may well be regarded as corroborative of plaintiff’s testimony of what decedent said to Updegraff over 35 years previous, in that it indicated a condition of things which would have come about had there been such a contract as alleged. The trouble is that there was no sufficient proof of the contract. All the evidence bearing thereon is what plaintiff claims to have heard decedent say