125 Wis. 169 | Wis. | 1905
' The first error is assigned upon the exclusion of certain evidence. The plaintiff having introduced the
Error is also assigned opon refusal to permit defendant, widow of James Culbertson, to testify as to his mental “capacity. The offer was to prove by her that for ten years he 'had done no business because of his failing powers, mental and physical, and that for the last three years his memory had failed so as to render him incompetent to make any contract or do any business, which, counsel said, “we propose to show by his conduct and conversation.” The ruling excluding all such evidence went entirely too far. When the marital status has terminated, the former wife is under no dis- • qualification merely because her former husband or his estate is party to the suit. Bigelow v. Sickles, 75 Wis. 427, 44 N. W. 761; Brown v. Johnson, 101 Wis. 661, 77 N. W. 900. Her competency is only limited by secs. 4069, 4072, Stats., 1898; the former excluding testimony of a party as to transactions with the deceased in certain cases, and the latter prohibiting disclosure of confidential communications- — ■ probably, also, an opinion based wholly on such excluded transactions or communications. In re Hunt's Will, 122 Wis. 460, 100 N. W. 874. But defendant could have testified to acts, conduct, or transactions had by the deceased within her observation, if wholly unparticipated in and uninfluenced by her. Burnham v. Mitchell, 34 Wis. 117, 133; Wollman v. Ruehle, 104 Wis. 603, 80 N. W. 919; Brader v. Brader, 110 Wis. 423, 85 N. W. 681; Morgan v. Henry, 115 Wis. 27, 90 N. W. 1012; Anderson v. Laugen, 122 Wis. 57, 99 N. W. 437. After narrating such acts, conduct, or ■conversation, she could have testified to her mental impression as to decedent’s competency derived therefrom. Yanke v. State, 51 Wis. 464, 469, 8 N. W. 276; Crawford v. Christian, 102 Wis. 51, 78 N. W. 406; In re Guardianship of
Other assignments of error present events not likely.to occur upon another trial and may be passed without discussion.
By the Gourt. — Judgment reversed and cause remanded, for a new trial.