Lamberson v. Lamberson

175 Wis. 398 | Wis. | 1921

Lead Opinion

The following opinion was filed October 18, 1921:

Eschweiler, J.

Laying aside for the time consideration of the testimony of the plaintiff, is ample evidence in the record upon which the findings of the court can and should be upheld so far as they determine that a land contract for this farm of 160 acres was signed by John C. Lamberson and his wife on December 23, 1901, at Mr. Ekern’s office at Whitehall and on an occasion when the plaintiff was at the same office. The testimony of Mrs. Lamberson was properly received, and without objection, to that effect. It also appears from defendants’ own testimony that a land contract wherein Lloyd Lamberson was named as grantee and signed by John C. Lamberson and his wife was found among the father’s papers in the safety-deposit box after his death. It therefore may be considered as conclusively shown that Mr. Lamberson, then evidently considering the future disposition of all of his property and giving by his land contracts of December 24th two of these three farms to Alfred and George, did on the preceding day go so far at least as to have reduced to writing and signed by himself and wife a land contract making the plaintiff the grantee, under substantially similar conditions, of the remainder of his real estate, the farm here involved. He had thus evidently by December 23d and 24th reached a definite and declared conclusion as to the disposition he wished to make of his property, and in accordance with the suggestions, in a general way at least, embodied in the forms of contracts and wills that had been submitted to the two older sons and the daughter and concerning which the advice of each of them had been sought. It negatively appears that Lloyd, the youngest, a minor and not deemed presently able to carry on farm work, was not consulted concerning the matter, although evidently the subject of the parents’ solicitude and affection. As late as December 19th, in a letter to the son Alfred, the father says, “Look the contracts over and see if they are what you expected and let me know by return mail as my will has got to be based on these contracts.” No suggestion appears in the record that any objection was made by any of the three older children to the fairness of the proposed division or the particular provision for Lloyd.

George testifies that he knew the father contemplated giving Lloyd the Dowd-Daggett farm about the time that his, George’s, contract and Alfred’s contract were made out. He also testifies that he saw all three contracts at about that time, that Alfred’s was then executed, his was not, and Lloyd’s was not. It is evident, however, from the face of the land contracts to Alfred and George, in each of which the date of acknowledgment of December 24th is written in with pen and ink rather than by typewriter, that he must be confused or mistaken as to the precise time when he saw these land contracts, because it is a verity that the contract to Lloyd was signed and preceding either of the others.

The preservation by the father of this signed land contract to his youngest son among his valuable papers rather than leaving them in Mr. Ekern’s office files, as was the case with the drafts of the unexecuted wills and land contracts; the evident intention in December, 1901, of making a complete future disposition of all of his real property; the absence of anything showing that he was wavering in his mind as to whether he would give this 160-acre farm to either Alfred or George rather than toLloyd; the disposition he was then making and did make for these two elder brothers; the fact that the only changes suggested during this period were more as to matters of detail than as to the general scheme; his stating to the daughter New Year’s day that all was finished, are very persuasive in confirming the conclusion of the trial court that there was then a completed, effectuated dis- ' position of all of his real property by the signing and acknowledging of three land contracts of equal force and validity, rather than, as contended by defendants, a halting by him after he and his wife had signed and acknowledged the land contract to Lloyd and thereby changing in such substantial manner his general scheme for division and as against his youngest child and without any apparent cause for so excluding him.

The apparent assertion by the father in his last will, made in 1915, of a then contrary intent as to this farm by his devise thereof to George, can have no weight, therefore, in the disposition that must be made here of the rights of the plaintiff arising, if at all, by the transaction of December, 1901. Jones v. Caird, 153. Wis. 384, 386, 141 N. W. 228.

Considerable stress is laid by appellants upon the testh mony of Mr. Ekern and his then stenographer to the effect that the copy of the signed land contract to the plaintiff which was found in the office files as late as 1919 was the original ribbon copy and the one which, under, the custom of the office; would be the one to be signed by the parties, and upon the improbability of the sister, Mrs. Lowe, being able to recollect the description of the property covered by the land contract; but these are not of much significance in view of the undisputed fact that some form of a land contract was signed by Mr. and Mrs. Lamberson with Lloyd named as grantee, that Mrs. Lamberson knew that it was of this particular property, that it was subsequently so referred to by the father as being plaintiff’s farm, and, perhaps what is more significant than all, that Alfred Lamberson, executor of the estate, the only one who saw the contract after the father’s death, does not testify that such contract was not of this particular farm; also that there was no. other real estate belonging to Mr. Lamberson at that time than this farm which was not then disposed of by deed or land contracts to the other sons.

Unless defendants have by their procedure on the trial waived the objection which was properly interposed under sec. 4069, Stats., as to the want of competency of Lloyd to testify to a transaction or communication with his father now deceased, his testimony as to the contents of the land contract of December 23, 1901, cannot be properly considered in this case. Fels v. Estate of Felz, 170 Wis. 550, 553, 174 N. W. 908. And the same would hold good as to his testimony of his signing the land contract in the presence of his father, having then received it and immediately returning it. Jackman v. Inman, 137 Wis. 30, 118 N. W. 189; Chase v. Woodruff, 138 Wis. 641, 646, 120 N. W. 499.

We think, however, that this testimony of the plaintiff was properly before the trial court for consideration in disposing of this case. On the adverse examination of plaintiff, taken at the instance of the defendants more than a year prior to the trial, he was examined fully by defendants’ counsel upon a stipulated notice that he should produce on such examination the written evidence, records, etc., of transactions between plaintiff and said John C. Lamberson. He was there asked as to whether he took any part in the leasing of the farm after December, 1901; as to having the original or a copy of the alleged contract of December 23, 1901, and testified without objection that he did have the original in his possession at the time it was signed by him and at the date thereof; as to the number of copies that were signed; and in response to a question as to whether he could recall the contents of the alleged contract he answered:

“I know the general provisions of all three contracts, as I read them at the time I signed my contract, and Mr. Lam-berson was particularly careful about showing me the other boys’ contracts, and I read these contracts as well as my own and read the will made at that time providing for the disposal of his property, in which will, I believe, these contracts are all mentioned.”

Defendants’ counsel then moved to strike out all that part of the answer after the words, “I know the general provisions of all three contracts, as I read them at the time ,1 signed my contract,” as being unresponsive to the question. This objection, however, was not renewed at the trial.

When called as a witness on his own behalf at the opening of the trial he testified without objection as to being called by his father to Mr. Ekern’s office December 23, 1901, and that a written instrument was handed him at that time which he read over carefully. Defendants’ counsel then objected to his testifying to the effect that he was asked to sign it by his father, on the ground that it was incompetent as being a conversation with a deceased person. The court received it subject to the objection, and plaintiff then testified that he did sign it in the presence of two witnesses and after the signatures of his father and mother were made.

The suggestion then being made that the contract was lost, which was not disputed, he was permitted to testify as to its contents, over objection on the ground that it related to a transaction with a deceased person. He also testified that he turned his contract over to his father the same day for safekeeping, objection being interposed by defendants to this as a transaction with a deceased person. The court overruled the objection.

On cross-examination, referring to his direct"examination as to the transaction of December 23, 1901, in Mr. Ekern’s office, he was asked by defendants’ counsel who was present at the time that he signed his copy and his father’s copy. He was then interrogated concerning certain portions of his adverse examination before trial on the subject of how many copies were executed and whether he had not there testified that lie had signed his name only once and that he did not carry the paper away with him and had not seen it since. He was further cross-examined as to the contract providing that he was to have possession immediately; as to the form of the contract, and as to when he signed the document, answering that he signed it after his father and mother had signed it.

On redirect examination plaintiff’s counsel asked to have the witness testify as to all that was Said between his father and himself at the time of the execution of the contract. The court held thát there was not sufficient opening of the door by the adverse party to permit him to so testify, and nothing further was'done in-this régard on the trial.

We think that the use on the cross-examination of the plaintiff by defendants’ counsel of the portion of the deposition o'f plaintiff as an adverse witness was sufficient opening of the door' to permit the witness’s testimony as to his signing of the contract after the father and mother had signed it to stand as a part of his case.

Manifestly if this examination of the plaintiff had been made at the trial by defendants calling hirh as an adverse witness under sec. 4068, Stats., the door would-have been opened by such examination to permit the plaintiff to testify in that regard at least. Drinkwine v. Gruelle, 120 Wis. 628, 632, 98 N. W. 534. It was as effectual as though it had been based upon an express offer on defendants’ part so to examine as to the transaction, as in Johnson v. Bank of Wisconsin, 163 Wis. 369, 373, 158 N. W. 59.

Furthermore, the defendants themselves made all the plaintiff’s testimony on his adverse examination part of the record in this case by their offer of the whole of the deposition without qualification or reservation of any kind at the closing of the testimony. While it is true that such a deposition is not a part of the record on the trial until it be offered, yet the express right is given by sub. 2, sec. 4096, Stats., to the party taking the examination to offer the same whether the party so examined be present or not. It is also true that such cannot be offered by the party whose deposition is thus taken (Lange v. Heckel, 171 Wis. 59, 175 N. W. 788, and followed in Thomas v. Lockwood Oil Co. 174 Wis. 486, 182 N. W. 841), yet by defendants’ own offer of the depositión they made it their own evidence, subject to proper, objections to the whole or parts thereof by the other party. Maldaner v. Smith, 102 Wis. 30, 40, 78 N. W. 140; Sioux Land Co. v. Ewing, 165 Wis. 40, 45, 160 N. W. 1059. The testimony thus made a part of the record may as properly be used by the plaintiff in the consideration of this case as though he had been called in sur rebuttal to testify as to transactions concerning which the defendants had already thus offered evidence, as was done in the case of Anderson v. Anderson, 136 Wis. 328, 331, 117 N. W. 801.

We are satisfied, therefore, that there was in the record ample to support the finding of the court that there was a signing of this land contract by the plaintiff as well as by the father and mother, that it covered the property in question, that its terms were substantially as testified to by the plaintiff and the other witnesses, and that it was intended to be and considered an effectual transaction whereby the minor son, then a member of the family and under the father’s direction and control, became vested with the same rights in and to the real estate described in his land contract as did the sons George and Alfred in their respective pieces. That possession was not taken by Lloyd of his piece of land, as was done by Alfred and George of their respective portions, that no accounting was ever demanded by Lloyd during his father’s lifetime, and no assertion of ownership made by him during that period, is not sufficient in our- judgment, in view of the situation and relationship existing between the two, to overthrow the findings of the trial court.

The plaintiff was not permitted to testify as to any express agreement between his father and himself in December, 1901, for the carrying on of the farm thereafter, if any such agreement were made, and the findings excepted to by defendants to the effect that there was such agreement are without direct evidence for their support; but in view of what has already been said such findings are not essential to support the judgment and may therefore be disregarded.

It is also unnecessary to consider whether actual manual delivery of a land contract by the grantor to grantee is essential in order to perfect the contract, for there is sufficient evidence, as indicated above, to warrant the court’s conclusions that the transaction between the father and the plaintiff was completed. The relationship between the parties; the evident understanding by all members of the family that Lloyd was not fitted for the work required to successfully manage a farm of that size, and that he was, with his parents’ evident approval and consent, occupied in other pursuits; that the father was so situated that he could in a general way supervise the management of this farm and did arrange to have it conducted by the sons Alfred and George or their respective sons; the hesitancy that would naturally arise between a son so placed as was the plaintiff, on evidently affectionate terms with his father, to deal with such parent of whose bounty he was thus a beneficiary on a strictly business basis, all are amply sufficient to justify the concluí sion of the trial court that there was no abandonment by Lloyd of the rights that he secured by the transaction of December 23, 1901.

Under the stipulated facts agreed to by the parties to this action it was evident that an accounting would have been-an idle ceremony, as it stands conceded that the receipts and proper disbursements in the conduct of this farm balanced.

It follows from what is said that the conclusion of the trial court that the plaintiff is entitled to have it declared that he is the owner of the farm in question can and should be upheld.

By the Court. — Judgment affirmed.

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Dissenting Opinion

Siebecicer, C. J.

(dissenting). I cannot concur in the decision and opinion of the court. Permitting the plaintiff to testify to transactions with his father concerning the signing and delivery and plaintiff’s redelivery of the land contract in December, 1901, as detailed in the statement of the case and the opinion of the court, clearly shows, in my opinion, that the trial court erred in receiving plaintiff’s evidence of those transactions oyer defendants’ objection under sec. 4069, Stats.' Nor can I concur that defendants waived this objection by their offer of plaintiff’s deposition as an adverse party without qualifications before the reception of evidence was closed. To hold that such offer so made after the court had erroneously admitted evidence of the substantial and material parts of such transactions with the deceased was an opening of the door on this subject by defendants,'seems to me contrary to the intent of the parties. Such offer by defendants of plaintiff’s adverse examination was manifestly induced by the court’s erroneous ruling in admitting at the trial plaintiff’s oral testimony of these transactions with his deceased father. In view of the court’s action on this subject defendants’ counsel naturally supposed that all plaintiff had testified to on this point was before the court and would be considered in deciding the case. It seems plain to me that this court’s decision on this phase of the case is a misinterpretation of the defendants’ purpose in thus finally meeting the trial court’s erroneous rulings under the provisions of sec. 4069, Stats. A study of the evidence persuades me that the trial court’s findings that plaintiff’s father conveyed title by contract to the farm in question in December, 1901, are not sustained by the record on which the trial court acted. Furthermore, if the evidence of plaintiff concerning the transaction between him and his deceased father in December, 1901, be excluded from the case, as I think it should be, because incompetent under sec. 4069, Stats., then there is no evidence in the case to sustain the plaintiff’s case.

I am of the opinion that the trial court committed prejudicial error in receiving plaintiff’s evidence of the transaction with his deceased father and improperly based its findings on such evidence, and that there is no legal evidence to sustain the judgment and it should be reversed.

I am authorized to state that Mr. Justice Owen concurs in this dissent.

A motion for a rehearing was denied, with $25 costs, on December 13, 1921.