93 Neb. 491 | Neb. | 1913
Lead Opinion
Dr. Charles Badger some time before his death sold and. conveyed the land in question to the defendant William Henry Rich, for the agreed price of $7,000, and took in payment therefor notes secured upon the land. After-wards, Dr. Badger transferred the notes to the defendant Milton College, a Wisconsin corporation. The plaintiff brought this action in the district court for Yalley county, and alleged that Dr..Badger had agreed to convey the land to her for a sufficient consideration, and had, pur
William J. Holladay, the plaintiff’s husband, was called as a witness for the plaintiff, and the defendants objected on the ground that he was disqualified under section 329 of the code, which provides: “No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness,” with specified exceptions. In McCoy v. Conrad, 64 Neb. 150, it is said: “In order to justify excluding this testimony three things must concur: First, the witness offered must have a direct, legal interest in the result of the litigation; second, the evidence offered must relate to transactions and conversations had between the witness and deceased; third, the evidence must be offered against one who is a representative of the deceased person.” Does Mr. Holladay have a direct legal interest in the controversy? In the commencement of this action he was joined as plaintiff. Later the action as to him was dismissed. It is insisted that his liability for costs makes him directly interested. But his liability for costs is limited to costs incurred by the defendants while he was a party. And it does not appear that the defendants incurred costs during that time that they could recover from Mr. Holladay if they were successful in the action. Is Mr. Holladay’s interest as husband of the plaintiff of such a character as must be held to be a direct legal in
The plaintiff contends that the adverse party was not the representative of the deceased, within the meaning of the statute, and quotes the following also from McCoy v. Conrad, supra: “The statute is limited in its reason and spirit by fair construction to contests on litigation upon claims between other persons and the deceased, existing prior to his death; to such suits and proceedings as the deceased Avould have been, if living, a necessary party, and since which his heirs, devisees, and legatees, personal representatives or assigns, are compelled to prosecute or defend for him in his place.’ ” This language was quoted from the supreme court of Michigan. The last clause of the quotation is not as accurate as the first. The plaintiff’s claim as against Dr. Badger existed prior to his
The evidence shows that the plaintiff’s husband had a farm of 320 acres in Yalley county, and that many years ago he transferred this farm to his wife, and that Dr. Badger had the benefit of the use of this farm and the rentals thereof for some 15 or 16 years. One witness testified that the rentals amounted to at least $250 a year, and Ave have not observed that this evidence was contradicted. There is also evidence tending to prove that the plaintiff many years ago received a legacy of $300, and that this was turned over to Dr. Badger, and also that the plaintiff earned money in school-teaching many years, Avhich was used by the family; and that the plaintiff became the owner of a house and lot which was sold by Dr. Badger and a large part of the proceeds used by him. There is also evidence tending to show that Dr. Badger’s wife, the plaintiff’s step-mother, had a farm adjoining the land in dispute, known as the “Weaver farm,” and that the plaintiff at the solicitation of Dr. Badger exchanged
It is alleged that Dr. Badger some time before his death was addicted to the use of narcotics, and was for that reason incapable of transacting business. This allegation is not sustained by the evidence. He was, however, more than 80 years of age. Mrs. Badger, as a witness for the defendants, testified in regard to his physical and mental condition at the time and prior to the transfer of the land to the defendant Rich, and afterwards several letters written by Mrs. Badger were offered and received in evidence without objection. In one of these letters, under date of March 15, 1903, she said: “You have no idea how feeble
The plaintiff’s husband frequently acted for her in regard to her property and interests, and defendants introduced in evidence a letter written by him to Dr. Badger under date of April 25, 1905, which was soon after the land in question was conveyed to the defendant Rich. In this letter he said: “I am more than sorry to learn that
The plaintiff was not allowed to testify, but there is evidence tending to prove that Dr. Badger executed a deed conveying this land to the plaintiff and delivered the deed to her, and afterwards upon the representation that he desired that the deed should name the plaintiff’s husband also as grantee, and perhaps other representations, procured the deed from the plaintiff to make such changes, and failed to return it. There is evidence indicating that this deed still remained among Dr. Badger’s papers after his death, and was destroyed by interested parties. After-wards Dr. Badger executed a conveyance that is called a lease. It provided that the plaintiff and her husband should have the land in question as long as Dr. and Mrs. Badger lived, and should furnish them the necessaries for their support, and after their death should have the land absolutely. Still later the plaintiff and her husband executed an instrument for the purpose of canceling this so-called lease. It is a quitclaim of “all our interest, claim and demand in and to the certain leasehold interest heretofore made.” It does not purport to quitclaim the land itself, but contains a clause granting Mr. Badger “full power and authority to deal with said above described property as they may deem proper.” As Dr. Badger had been using all the lands of all the parties as he deemed proper, this last clause must be construed in the light of that fact. The evidence in regard to the execution and delivery of the deed is perhaps not so definite and conclusive as to establish that fact, but the clause in the so-called lease subsequently made, that after the death of Dr. and Mrs. Badger the plaintiff and her husband “shall come into full and immediate possession of said property, and this lease put on record shall be to the said Holla
There is some claim put forth in the briefs that the defendant Milton College is an innocent purchaser of the notes, so that its title cannot be questioned. The evidence shows beyond a question that the notes were a pure donation to the college, and were so received and understood by all parties. The agreement to pay interest during the lifetime of Dr. and Mrs. Badger, or either of them, constitutes no consideration for the notes, as it merely amounts to allowing them the interest that was to be paid by the maker of the notes, the college taking the principal and the interest after the time limited. Mr. Rich was well acquainted with the land and existing conditions, and cannot, of course, claim to be an innocent purchaser; even if he were, he had not made payment at the time this action was begun, and therefore could not be an innocent purchaser as to such payments as he might malee after notice. There is no doubt of the good faith of the college and its officers, and it would appear that to aid such an institution is a worthy object. Dr. Badger is not to be criticised for his desire to advance Christian education. In his age and infirmity he forgot his obligation to this plaintiff, and perhaps mistakenly supposed that because she had no title that she could place on record, and he himself had the legal title of record, he could withdraw his promise and dispose of the land as he thought best under all circumstances.
The judgment heretofore entered in this court is adhered to.
Judgment accordingly.
Concurrence in Part
dissenting in part, and concurring in the conclusion.
I concur in the conclusion that the court should adhere to the judgment heretofore rendered.
1. While the cogent argument contained in the majority opinion is strong, it appears to me that it might be still stronger and absolutely conclusive if it contained all of the material facts in the case, some of which, no doubt, are left out by inadvertence.
2. I am not satisfied that William J. Holladay, the plaintiff’s husband, was disqualified to testify as a witness under section 329 of the code. I therefore dissent from so much of the opinion as holds that he was disqualified. Under the present decedent law, the plaintiff’s husband had no direct legal interest in the result of the action, as the contingency by which he might possibly become entitled to the use of the land, or have an heirship in it, had not arrived. His wife was then living. And there is a waiver of the protection offered by section 329
3. I dissent from so much of the opinion as finds that Dr. Badger was not using a narcotic. One witness, Oscar Babcock, saw him every day, and testified that the doctor told him he could not keep up without medicine, and that the doctor said to him: “I can’t leave it alone, I can’t live without it.” He also said that he used the purest article that he could get; that he did not buy it in town; that he could get a better article by sending away for it; that he bought f! worth at one time; that he said: “I can’t keep up without it.” A number of witnesses testified that he failed to recognize his nearest neighbors'; that he would meet them and say “I don’t know you”; that he got very bad physically; that he would say, “I can’t call your name,” and then, when the man told him his name, he would not be able to place him; that he gradually became weaker, and at times was seemingly unconscious of his surroundings; that he imagined there was something
4. I dissent from so much of the opinion as fails to find that the deed to William Henry Rich and the donation of the notes and mortgage to the college were obtained by the undue influence of William Henry Rich, Mary B. S. Badger, and M. B. Kelly, the preacher.
Dr. Badger was frail, and his mental power was much reduced by illness and old age. He Avas frequently ill, and he was beyond 80. The step-mother of the plaintiff had a direct interest in the conveyance of the land to Rich and the donation to the college. She became a beneficiary by that transaction, because after her husband’s death she was to receive the interest. In vieAV of the doctor’s weak condition, his probable habits as to the narcotic, and Avith these strong and designing people around him, there was plenty of evidence, as it seems to me, to fully justify the conclusion of undue influence. At the time of the execution and delivery of the deed to .the defendant Rich, Dr. Badger was extremely feeble, very infirm in his body, and. hazy and uncertain in his mind, and also a.t the time that he delivered the notes and mortgage to the defendant Milton College, through M. B. Kelley, the traveling preacher.
Of course, it is always a worthy object to aid a school or college, but T believe the blame should be placed where it belongs. Mary B. S. Badger, the step-mother, William Henry Rich, who received the deed for the land and who
I refer to the former opinion of this court (Holladay v. Rich, 92 Neb. 91), because it contains a fuller and more complete discussion of the facts than I am able to give in this brief review.
Dissenting Opinion
dissenting.
The evidence outlined in the opinion of the majority is, in my judgment, insufficient to justify the decree pronounced. I think the judgment of the district court should be affirmed. T am therefore compelled to adhere to my former dissent.