Alexander v. Bobier

• Decision Date: 10 July 1917
• Docket Number: Case Number: 8158
• Citation: 166 P. 716,1917 OK 355,65 Okla. 301
• Parties: ALEXANDER v. BOBIER et al.
• Court: Oklahoma Supreme Court

1917 OK 355

166 P. 716

65 Okla. 301

ALEXANDER v. BOBIER et al.

Case Number: 8158

Supreme Court of Oklahoma

Decided: July 10, 1917

Syllabus

¶0 1. Witnesses -- Competency -- Transactions with Decedent. In an action brought by an administrator, the widow and stepdaughter of deceased, neither being a party to the action, are competent witnesses to testify as to transactions and conversations had personally by the defendant with deceased. Such witnesses do not fall within the inhibitions of section 5049, Revised Laws of 1910; neither are they made incompetent on account of the interest that they might have in the result of the action.

2. Pleading--Presumptions. When a petition avers facts of a continuous nature, which precludes the recovery of the plaintiff, they will be presumed to continue to exist unless the contrary is averred.

3. Homestead--Conveyance--Effect of. The transfer of the naked legal title of the homestead, retaining the possession and use of same by grantors, even when done with the purpose and intent to defraud creditors, does not destroy the homestead character so as to render it subject to the claims of creditors.

4. Homestead--Character of. An equitable title or ownership, together with the possession and occupancy as a home, is sufficient basis to support the homestead.

W. T. Williams, W. M. Engart, and Edward Howell, for plaintiff in error.

Baldwin & Carlton, for defendants in error.

PRYOR, C. (after stating the facts as above).

¶1 The principal error complained of in this case is the exclusion by the court of evidence offered on the part of the plaintiff and objected to by the defendant. At the trial of said cause, the plaintiff offered to prove by Ida Horn, stepdaughter of the deceased, and Louisa Bobier, widow of the deceased, the conversations between the deceased and the grantee, the agreement as to the purpose of making the deed and the understanding between the deceased and the grantee, Thomas E. Bobier, as to the disposition of the land, and for whose use and benefit the said grantee was to hold said land, and that there was no consideration from Thomas E. Bobier to J. R. Bobier. The defendant objected to these witnesses testifying, on the ground that under section 5049, Revised Laws of 1910, they were incompetent. The court sustained the objection of the defendant to the competency of the witnesses, and ruled that they could not testify as to any conversation or transaction between the defendant Thomas E. Bobier and the deceased, J. R. Bobier. The statute referred to, in so far as it is material here, is as follows:

"No party to a civil action shall be allowed to testify in his own behalf, in respect to any transaction or communication had personally by such party with a deceased person when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where such party has acquired title to the cause of action immediately from such deceased person. * * *"

¶2 It is apparent from examination of this statute that these witnesses do not fall within the inhibition of its provision. Neither of them are parties to the action; they are not called upon to testify in their own behalf; hey are not called upon to testify to any transaction or communication had personally with the deceased; neither are they claiming to have acquired title to the cause of action immediately from the deceased. The purpose of this statute is to prohibit a party to an action from testifying to transactions or communications that he might have had personally with the deceased, and not to prohibit third parties or strangers to the action from testifying to any conversation that the party might have had with the deceased. It is the intent of the statute not to allow a party to testify to transactions and conversations that he might have had with a deceased person for the reason that a deceased person cannot testify as to his version of the conversation or transaction. It is the purpose of the statute to put the living and the representatives or successors of the dead on an equality as to the conversations and transactions that the living might have had with the dead. As death has sealed the lips of one, the law seals the lips of the other. The further objection is made to the testimony of Ida Horn, for the reason that she has a claim against the estate of the deceased, and that if this suit should be determined in favor of the plaintiff, she would be benefited by the result. In this state no person is incompetent to testify by reason of his or her interest in the subject-matter. And the above statute referred to places the incompetency on an entirely different ground. In Griffin v. Robertson, 73 Kan. 666, 85 P. 748, it is held:

"A daughter or other party prosecuting a claim against the estate of a deceased person is competent to testify to conversations had between the deceased and a third person in the presence and hearing of the witness."

¶3 These witnesses were competent to testify to the allegations which they were produced to prove. Their testimony was material and necessary to the establishing of the plaintiff's cause of action, and therefore the court committed prejudicial error in holding that these witnesses were not competent to testify, if it were not for the following reasons:

The defendant in error, however, has raised the question that the petition does not state facts sufficient to constitute a

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