48 Neb. 691 | Neb. | 1896
The defendant, James F. Morton, on the 7th day of December, 1885, received from one Adolph Yon Heilen $1,500, to be loaned for the latter for a period not exceeding five years, at not less than ten per cent interest per annnm, the interest to be paid semi-annually. By the power of attorney executed by Yon Heilen the notes and securities taken for the loans were to remain in Morton’s hands, he guarantying the prompt payment of the principal and interest as the same became due. Subsequently, on June 28, 1886, $500 more was received by Morton to loan under the same terms, and the entire $2,000 was put at interest by him. Receipts for said sums were given by Morton to Yon Heilen. On the 18th day of March, 1887, Yon Heilen died intestate, leaving him surviving, a brother and four sisters, the plaintiffs herein, as his only heirs at law and next of kin, to-wit: (1 Edward Yon Heilen, Alice Kroh, Emma O. Thompson, Mary E. Brown, and Anna A. Heins. The defendants, William F. Heins, Mary J. Heins, and Alice Heins, are the minor children of said Anna A. Heins. ■ The plaintiffs claim the notes and securities taken for the said moneys placed in Morton’s bands as heirs of their deceased brother, and the said minors claim the same as a gift from the said Adolph in December, previous to his death. This is an equitable action to determine the rights of the plaintiffs to said moneys and securities. From* a decree in favor of the defendants, the plaintiffs, excepting said Anna A. Heins, appeal.
The defendant Morton in his answer, among other things, sets up that he has no moneys in his hands belonging to the estate of said Adolph Yon Heilen; that the latter in his lifetime appointed his sister, said Anna A.
The evidence to establish the alleged gift of the money to the said minors rests alone upon the testimony of the defendant Morton and the said Anna A. Heins, which was admitted over the objections of the plaintiffs, they claiming that the said Morton and Mrs. Heins were disqualified from testifying against the personal representatives of said deceased. If they are right upon this proposition the decree cannot stand. Mrs. Heins testified, in effect, that she visited Adolph Yon Heilen at his home in St. Louis in 1886, and that while there he informed her of his intention to make a gift of the moneys in Morton’s hands to her three youngest children, and that after-wards, in December of the same year, she received a letter from Yon Heilen through the mails inclosing the receipts given by Morton for the $2,000. This letter having been lost, she was permitted to testify as to its contents, as follows: “He wrote stating and sending the receipts with his letter, ‘and take this letter and show it to Mr. Morton and turn these receipts over to him, and get his receipt in full for all the money,’ stating that he was sick, and he says, ‘in case of my death without making a will, it is my express wish that the money should go to your three youngest children.’ ” She further testified that she
Counsel for plaintiffs argue that there is not sufficient competent evidence in the record to establish a gift from Von Heilen to the minor defendants, for the reason that both Mr. Morton and Anna A. Heins were incompetent to testify against the plaintiffs as to transactions which they had with Von Heilen in his lifetime. The question raised is whether either of these witnesses is disqualified from testifying to conversations had with the deceased, and to the contents of the letters already mentioned, under the provisions of section 829 of the Code of Civil Procedure, which reads as follows: “No person having a direct legal interest in the result of any civil action or proceeding, when the adverse, party is the representative
The court in Van Vetchten v. Van Vetchten, 65 Hun, 215, in construing the statute of New York, almost identical with our own, say: “The language and intent of that section embraces every variety of affairs; all means of communication, oral; written, signs, or gestures, direct or indirect, positive or negative, or evidence of facts, the plain inference from which is a personal transaction between the witness and the party deceased. If the dé-ceased could contradict, explain, or qualify the testimony, if living, it comes within the rule;” citing Tooley v. Bacon, 70 N. Y., 84; Koehler v. Adler, 91 N. Y., 657; Holcomb v. Holcomb, 95 N. Y., 316; Mills v. Davis, 113 N. Y., 243; Nay v. Curley, 113 N. Y., 575-580; Heyne v. Doerfler, 124 N. Y., 505.
Montague v. Thomason, 18 S. W. Rep. [Tenn.], 264, was a suit against the makers of a note found among the valuable papers of the deceased payee. It was held that one of the makers was incompetent to testify that he received a letter from the payee, which was lost, authorizing the renewal of the note in suit and promising to return such note as satisfied on the receipt of the renewal; that the renewal note was executed and delivered to the payee, and that he failed to return the original note. The
Upon principle and authority we are constrained to hold that the testimony objected to related to transactions between the deceased and the witnesses, and, therefore, is within the prohibition of the statute, if Morton and Mrs. Heins had a direct legal interest in the event of the suit, and plaintiffs are the legal representatives of the deceased. In Wamsley v. Crook, 3 Neb., 344, it was held that “the word ‘representative,’ as used in the statute, was intended by the law-giver to designate the person or party who succeeds to the rights of the deceased, whether by purchase, descent, or operation of law.” The same doctrine has been announced and applied in Magemau v. Bell, 13 Neb., 248; Housel v. Cremer, 13 Neb., 298;. Mead v. Weaver, 42 Neb., 149. It follows from those adjudications that plaintiffs were the representatives of Von Heilen, a deceased person; and if Morton and Mrs. Heins ])ossessed a direct legal interest in the litigation, their testimony as regards the contents of the letters in question was incompetent and should have been excluded. ,
Counsel for the defendants argue that they were not disqualified from testifying. It is to be remembered that Mrs. Heins is one of the heirs of her deceased brother, and is one of the parties plaintiff to this action. If plaintiffs succeed, and the gift to the children be not
The proving of the contents of the letter which it is claimed Von Heilen wrote Mrs. Heins, and the surrender by her to Morton of his receipts for the money, were insufficient to establish a valid gift of the funds to the minors without proof of the delivery of the subject of the gift, or such delivery as the nature of the property and the circumstances and situation of the parties would permit. The notes and securities held by Morton were never actually delivered by Yon Heilen to Mrs. Heins or her children. It is claimed that the letter making the gift of them to the children was accompanied by the receipts of Morton evidencing Yon Heilen’s rights to the funds in dispute. If the delivery of the letter and receipts to Mrs. Heins was established by competent evidence, it might suffice; but outside of her testimony there
Reversed and remanded.