Bowler v. Fahey

• Decision Date: 11 May 1917
• Docket Number: 20,219 - (59)
• Citation: 162 N.W. 515,136 Minn. 408
• Parties: VINCENT BOWLER v. JOHN J. FAHEY
• Court: Minnesota Supreme Court

162 N.W. 515

136 Minn. 408

VINCENT BOWLER v. JOHN J. FAHEY

Nos. 20,219 - (59)

Supreme Court of Minnesota

May 11, 1917

In the matter of the estate of Stewert Bannon, deceased, Vincent Bowler, S. A. Bowler, Charles Bowler, Flora Mensing and Anna Kendall, his next of kin, appealed to the district court for Scott county from the order of the probate court for that county admitting to probate the will of testator. The appeal was heard before Steele, J., and a jury which returned a verdict that the testator was of sound mind at the time he made the will, and that the order of the probate court should be affirmed. From an order denying their motion for a new trial, contestants appealed. Affirmed.

SYLLABUS

Witness -- cross-examination of adverse party -- proponent of will.

1. A proponent of a will for probate is a mere nominal party to the proceeding, though named as executor in the will, and he is not interested in the event by reason of being so named nor by reason of being the husband of one of the devisees so as to constitute him an adverse party to the contestants within the meaning of section 8377, giving an adversary in a litigation the right to examine an opponent as if under cross-examination.

Witness -- conversations between testator and devisee.

2. A devisee, who voluntarily enters upon a contest opposing the probate of a will, thereby asserts such an interest in the issue as to be precluded from testifying to conversations with the testator concerning his intentions in respect to the disposition of his property.

J. J Moriarty and F. C. & H. A. Irwin, for appellants.

Julius A. Coller, for respondent.

OPINION

HOLT, J.

The court below ruled that John J. Fahey, proponent, and executor of the will of Stewert Bannon, deceased, could not be called by contestants for cross-examination under G.S. 1913, § 8377, which provides that "a party to the record of any civil action or proceeding, or a person for whose immediate benefit such action or proceeding is prosecuted or defended * * * may be examined by the adverse party as if under cross-examination." This ruling furnishes the main basis for this appeal. Because a person appears as a party to the record it does not necessarily follow that he may be called as a witness by any other party to the record in the litigation and examined as if under cross-examination. The one called must be one having an actual personal interest in the controversy as distinguished from a mere nominal interest, and the party calling him must be an adversary and not one maintaining the same issue. A nominal party, who has no real interest in the issue litigated, is not considered an adverse party to any one of the actual litigants so as to come within the purview of the statute. Such a one is a party to the record who is in default (Suter v. Page, 64 Minn. 444, 67 N.W. 67) or a defendant who has answered and admitted the claim of the plaintiff calling him (Bachmeier v. Bachmeier, 69 Minn. 472, 72 N.W. 710). The question, therefore, is: Was Mr. Fahey merely a nominal party to the proceeding? He was not a beneficiary under the will. That his wife was a devisee does not in law constitute him a person for whose immediate benefit the proceeding is prosecuted. He has therefore no personal interest in the probate of the will. His interest as executor is contingent and uncertain. His appointment as executor does not necessarily follow from an allowance of the will. He is proponent simply because named as executor in the will. It is true that as such he is "the champion of the will," but in that capacity he represents the interests of the beneficiaries, and not at all his own. The adverse parties in a proceeding to probate a will are on the one side those who prefer to take under the law of descent or some will other than the one offered for probate, and on the other side those who deem their best interests subserved by having the will allowed. Although an executor has been held a "party aggrieved" by a decree refusing to admit a will to probate so as to give him the right of appeal,...