111 Iowa 298 | Iowa | 1900
Plaintiff’s father, Stephen Finney, was a brother of Mrs. A. L. Connable. He died in the year 1855 in the state-of Alabama, where he then resided with his family. His father, who- lived in Jefferson county, Io-wa, sent the widow a small sum of money; and, thus aided, she started in the-year 1856 for tire grandfather’s ho-me. Mrs. Finney (no-w Holmes) had seven children, and these she brought with her.. Plaintiff, the third child, was at this time- nine years old;. her elder- brother and sister being, respectively, eleven and’ thirteen years. The family reached Keokuk on the night of a Saturday in May, 1856. None of them had ever met Mr. Connable, but on Sunday morning two of the children were-sent out to- find him. This they did, and he took the whole family from the hotel where they were stopping to his home,, where they remained until the Tuesday following, when the mother and six children pursued their journey, leaving-p-laintiff behind. The claim is that on Monday Mr. Oonnable proposed keeping" the plaintiff, and after so-me consideration the mother and child consented. The terms upon-which the child was taken are thus stated by the witnesses:. The mother says: “My older children were present, and Mrs. Connable. I was talking about leaving the next day,.
We come now to the testimony of the three children who were present when these conversations occurred:
Laura, who gives her evidence in the state of Oregon, where she resides at present, was thirteen years of age when Cordelia was taken. In 1891, after a lapse of more than forty years, she remembers that Connable promised that her sister “should share equally in his estate, as one of his own children.” In one of her letters written while arrangements were being made to take her testimony, she says, speaking of the occurrences at Keokuk: “I, was young,— thirteen years old; had the care of the other children; and, amid the confusion, I at the same time trying to hear the agreement, could not catch all that was being said. . * * * My health is bad, and memory poor.” Notwithstanding her poor memory, the witness repeats Connable’s promise in almost the same words used by her mother, brother, and sister; and on cross-examination she is led to recall one remark of Connable which none of the others, mention. He said: “He had property, and would leave her [Cordelia] a fortune.” There is one criticism of the testimony of this witness which applies equally to that of the other children. They were all of an age in 1856 when considerations of gain would not console them for a forced separation. The love of a child cannot be bought, nor its grief assuaged, by alluring prospects of the future. It lives in the present, and borrows but little either of joy or sorrow from the time to come. One would naturally suppose that on such a trying occasion, when one of their number was to be left with strangers, the agony -of the parting would exclude from their minds all the sordid considerations by which it was brought about.
Theodore Kinney, the brother, who. was eleven years of age when the transaction occurred, about which he testifies, remembers definitely but little of the visit to Keokuk;
The plaintiff is the last witness to the alleged contract. Her youth would seem to render it improbable that she could recall any of the business details, but she is able to repeat just what each person said. Oonnablefs promise was that on his death she should “fare and share as one of his children.” Indeed, this witness was so precocious that she noticed just the part she took in the conversation, and, strange to say, it, chanced to be such a part only as to give some ground for counsel’s claim that she is not disqualified under the statute. She never spoke, she says, until the contract between her mother and Connable was made, and then she consented to stay. Had the child been looking to preserving her competency as a witness in anticipated litigation after Oonnable’s death, her conduct could not have been more discreet. The witness says she remembers the conversation as well as if it had occurred “last week;” that ever since it took place she has kept in mind the fact that she had a contract which was performed on her part. Yet, in a letter to one of the defendants, after Mr. Connable’s death, she says: “I was to share equal had I stayed until I was 18 years. I was past 11 when I left.” She left Mr. Connable in 1865, and, although she resided thereafter in an adjoining county, never visited Keokuk' but once, and that was in 1892, when she was called to Montrose, some twelve miles distant from Keokuk, by the
“Keokuk Iowa Oct. 23 1889.
“Mrs. Cordelia Holmes.
“My dear Niece.
“Your very kind and affec — —-at-this m-1 am - ----you may never suffer for the want of bread and clothing, for yourself and children. You say you owe Mr. Hisk $35 balance on your sewing machine and through,” etc.
Plaintiff testifies that the blanks shown were originally filled so that the letter read: “Your very kind and affectionate letter due this morning. I was very glad to hear from you. I am going to arrange my affairs and will you
II. But it is claimed that plaintiff’s case is supported by the testimony of disinterested witnesses, and we turn our attention now to that branch of the controversy. Andrew Brown, eighty-eight years of age fa mere acquaintance of decedent), testifies that in 1856 Connable talked of taking one of his daughters; spoke jestingly of trading one of his own boys for a daughter of Brown; said he would give Brown’s daughter an equal share of his estate. Two years later Brown saw a little girl on the porch of Oonnable’s house, and asked if she was going to stay. Connable replied that she was, and added: “If she stays with me until my death, I will make her an heir of my property, the same as my other children.” This, old man says his memory is not good, but it is only a memory marvelously retentive that could preserve accurately through so many years