128 Minn. 277 | Minn. | 1915
Karen Paulson, a resident of Hennepin county, died at her home in May, 1913, leaving what purported to be her last will and testament, in and by which she devised and bequeathed all her property to her son, Peter B. Paulson, respondent herein. She left surviving four other children, all of mature years, who contested the allowance and probate of the will on the grounds that testatrix was of unsound mind at the time it was executed, and that she was procured and induced to make it by the undue influence of the beneficiary, her son Peter. The probate court sustained the will, and contestants appealed to the district court, where the issues were submitted to a. jury. The jury found that testatrix was of sound mind and that the will was her free act and deed uninfluenced by her son. Contestants moved for judgment notwithstanding the verdict or for a new trial. The motion was denied and two of the contestants, Hannah Olson and Serena Moe, appealed.
The assignments of error challenge the sufficiency of the evidence to support the verdict, rulings of the court on the admission and exclusion of evidence, and the charge of the court to the jury.
1. The question whether the evidence supports the verdict does not require extended discussion. The evidence on the trial took a wide range, and considerable latitude was given the contestants in the admission of testimony. We have read it with care and find therein ample evidence to support the conclusion that testatrix was mentally competent to make the will, that she fully understood all its provisions, and that it in fact represents her wishes as to the
2. A large number of errors are assigned to rulings of the court in the admission of evidence, many of which do not require special mention. A good portion of them are now urged in connection with the contention that the trial court abused its discretion in the rulings-complained of, and to such an extent that contestants were prevented from having a fair trial. It is sufficient answer to these assignments, that the question whether the court below was chargeable with misconduct in its rulings which prevented a fair trial, was not made one
3. One of the assignments of error in this connection deserves special mention. Respondent, beneficiary in the will, was called by contestants as a witness on cross-examination, and interrogated to some extent in respect to a conversation had with his mother, testatrix, before her death, in respect to the disposition of this property after she had passed away. The questions put to the witness in the main called for things said by the witness to his mother, and in answer thereto he stated things that the mother had .said to him. Whereupon his counsel was permitted to bring out the entire con
This statute declares that it shall not be competent for any party to an action, or any person interested in the event thereof, to give in evidence any conversation with, or admission of, a deceased party, relative to any matter in issue between the parties. The statute is not an absolute prohibition of such evidence, and the right to exclude it when offered may be waived. The right to exclude it is waived when the party entitled to object to its reception by cross-examination requires the prohibited witness to state the conversation or a part thereof. In re Hess’ Estate, 57 Minn. 282, 59 N. W. 193. Such was the situation in the case at bar. Contestant called for cross-examination of the adverse witness and interrogated him in reference to things said by him to deceased and things said by her to him. Under the case just cited the court properly permitted counsel for respondent to bring out the entire conversation. Such is the general rule under statutes of this kind. 4 Jones, Evidence, § 780. But counsel for appellant insists that his questions to the witness were intended to call from the witness only certain statements by him to deceased in reference to a division of the property after her death. If this be conceded, the difficulty is in no manner relieved. The evidence so sought to be brought out was necessarily a part of a conversation with deceased (Peterson v. Merchants Ele. Co. 111 Minn. 105, 126 N. W. 534, 27 L.R.A. [N.S.] 816, 137 Am. St. 537), and had reference to the will subsequently made by her and tended to show, had favorable answers been given, an agreement on his part to divide the property with contestants. We think evidence of this character comes clearly within the statute, and the cross-examination was a waiver and opened the door to respondent to state the whole conversation. 4 Jones, Evidence, 781, and authorities there cited.
4. The charge of the court is challenged by numerous assignments, but a careful examination thereof taken in its entirety discloses no sufficient reason for characterizing it as unfair or as containing in
Judgment aflhmed.