Baker v. Baker

• Decision Date: 06 January 1909
• Docket Number: 7,059
• Citation: 86 N.E. 864,43 Ind.App. 26
• Parties: BAKER ET AL. v. BAKER, ADMINISTRATRIX, ET AL
• Court: Indiana Appellate Court

86 N.E. 864

43 Ind.App. 26

BAKER ET AL. v. BAKER, ADMINISTRATRIX, ET AL

No. 7,059

Court of Appeals of Indiana

January 6, 1909

From Starke Circuit Court; John C. Nye, Judge.

Action by Viola Baker, as administratrix of the estate of Julius E Baker, deceased, against Louisa Baker and others. From a judgment for plaintiff, a part of the defendants appeal.

Reversed.

M. M Hathaway, M. Winfield and Beeman & Foster, for appellants.

W. C Pentecost, Oscar B. Smith and Henry A. Steis, for appellees.

OPINION

HADLEY, J.

This was an action brought by appellee Baker against appellants to recover some notes, mortgages, bankstock and other personal property, which, it is averred, belonged to the estate of said appellee's decedent, Julius E. Baker. It is alleged that appellant Louisa Baker had intermeddled with the estate and unlawfully obtained possession of said property, and refused to deliver up the possession or account for the same, although demand therefor had been made.

It is shown by the uncontradicted evidence that decedent was a son of appellant Louisa Baker, and brother of appellants Tracy G. Miles and Cleo Humphrey; that he was the cashier of the Bank of Starke County at Hamlet; that he made numerous loans to divers persons in the names of appellants Tracy G. Miles and Cleo Humphrey; that he kept notes and mortgages, representing a part, if not all, of these loans, in a drawer in the safe of the bank. The evidence is undisputed that this drawer had two keys--one kept by decedent, the other by appellant Louisa Baker. The keys to this drawer were each numbered "1." The drawer had no number on it.

A few days before the death of decedent, and while he was confined to his bed, appellant Louisa Baker went to the bank and took the securities in controversy from the drawer, stating, in effect, that decedent had authorized her to do so. There is no evidence that she was not so authorized. It was the theory of the administratrix that decedent used his own money in making these loans and investments, taking them in the names of his sisters to avoid taxation; while on the part of appellant Louisa Baker it was claimed it was her money he was using, handling it as his own, and that the securities representing these loans were her property.

On the trial a witness named Corbit was permitted to testify, over the objections of the appellant, that at a time not stated, and in the absence of the appellants, he had had a conversation with decedent in which decedent stated that he had made numerous farm loans in Starke county; that the most of the loans were in his sisters' names; that he gave as a reason for this that he did not want to pay any more tax than other money lenders were paying.

This testimony was incompetent. It is a general rule of law that self-serving declarations, made in the absence of the adverse party, are inadmissible in evidence (Brown v. Kenyon [1886], 108 Ind. 283, 9 N.E. 283; Bristor v. Bristor [1882], 82 Ind. 276); the exception to this rule being that when such declarations accompany and are connected with some act which of itself is admissible as tending to prove some question in issue, they may be given as qualifying or explaining such act as a part of the res gestae. Creighton v. Hoppis (1885), 99 Ind. 369; Boone County Bank v. Wallace (1862), 18 Ind. 82; McConnell v. Hannah (1884), 96 Ind. 102; Durham v. Shannon (1888), 116 Ind. 403, 9 Am. St. 860, 19 N.E. 190; Burr v. Smith (1899), 152 Ind. 469, 53 N.E. 469; Remy v. Lilly (1899), 22 Ind.App. 109, 53 N.E. 387.

The rule and exception and principle governing the same are clearly stated in Creighton v. Hoppis supra, where the court said: "It is the general rule that where an act is competent, so also are the declarations accompanying the act. It was said by Professor Greenleaf: 'But no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the claimant's title, or otherwise qualifying his possession, if made in good faith, should not be received as part of the res gestae.' 1 Greenleaf, Evidence (14th ed.), § 109. * * * 'The rule of law is, that where it is necessary, in the course of a cause, to inquire into the nature of a particular act, and the intention of the person, who did the act, proof of what the person said, at the time of doing it, is admissible in evidence, for the purpose of showing its true character.' [Downs v. Lyman (1826), 3 N.H. 486.] * * * In the cases cited by the appellant the evidence consisted of naked declarations unaccompanied by any act, and in such cases a very different rule obtains. We do not hold, nor mean to hold, that declarations unaccompanied by an act are admissible; on the contrary, we understand the rule to be against their admissibility. Nor do we hold that declarations accompanying an act are competent, where the act itself cannot be proved, but we do hold that where the act is competent, so also are the declarations made at the time it was performed. Even in such cases, it is only declarations explanatory of the act and immediately connected with it that are admissible. Narratives of a past transaction, although given at the time an act is done, are not competent. In order that the declarations may be competent it must...