190 Iowa 1344 | Iowa | 1921
— The defendants are husband and wife. F. E. Morse was the daughter of the decedent, John Bringham, who died in September, 1918. The promissory note involved in the*- controversy was for $3,000, and was executed by the defendants to Bringham as payee, for an admitted indebtedness, in October, 1914. The gift of said note, if made, was so made about a week after the execution thereof. The liberty bonds amounted ta $1,500, and were acquired about one year before the death of Bringham. The gift to Mrs. Morse, if made, was so made about December 1, 1917. The contention for her is that she had been in possession of both the note and the bonds from the respective dates named. The direct evidence given in sup
' ‘ It was about a week after the making of the note. I heard a conversation between my father-in-law and F. E. Morse, my wife, at that time, with reference to this note. I did not take any part in that conversation. My father-in-law gave my wife the note, and told her that it was for services she had rendered for the family; and he read it over a couple or three times before he gave it to her. He said: ‘I will give you this, Flora, for what you have done for the family and what you will have to do for me. There is nobody else to do it. They are all gone. ’ After he said that, he gave the note to her. I don’t recollect of anything else being said by him when he gave her the note just now. Yes, he did say: ‘I will have to have the interest as long as I live. That is all I ask of you. ’ ’ ’
The direct evidence in support of the claim of gift of the bonds was that of Mrs. Morse herself, and was as follows:
“The $1,500 worth'of bonds came into my possession the first of December, 1917. I was present at a conversation between my father and my husband, prior to the time these bonds came into my possession, in which he spoke of the bonds. I took no part in the conversation, which was at his home,— father’s house. I could not state the date. It was not very long before he died. It was in the sitting room. There was no one present but myself and "Wayland. Father was there. We three were the only ones present. At that time, father says: 'Wayland, here are some checks. You take them and buy Flora a liberty bond for $1,500.’ He did not say how many checks. I saw him give Wayland some checks at that time.”
The evidence of the widow of decedent was that she «was present at the time of the execution of the promissory note, and that such note continued in the possession of decedent, to her knowledge, for at least one or two years thereafter. She also testified that she was present at the time and place Axed by Mrs. Morse as the time and place of making the gift of the liberty bonds, and she denied that any such conversation as testified to by Mrs. Morse took place. The other testimony in the case consists, in the main, of declarations and impeaching circumstances. The family history, shown in brief, was that the decedent was
I. The answer pleaded by defendant F. E. Morse contained the following’:
Upon motion of plaintiff, the court struck from the answer all that part of the foregoing paragraph following the word “gift.” For convenience, we have included in brackets the portion so stricken. The ground of the motion was that the stricken matter was redundant, irrelevant, and immaterial. Complaint is made by appellant of this ruling, and the first ground of reversal is directed thereto. The matter thus stricken was manifestly evidentiary, and there was, therefore, no occasion to plead it. This much the appellants are disposed to concede;
This note was assessable, whether owned by Bringham or by Mrs. Morse. If Mrs. Morse did not schedule it for assessment, and if Bringham did, we see no reason for saying that this fact would not be a proper circumstance for the consideration of the jury. This is not saying that if would be conclusive of anything.