Bowler v. Fahey (In re Bannon's Will)

• Decision Date: 11 May 1917
• Docket Number: No. 20219[59].,20219[59].
• Citation: 162 N.W. 515,136 Minn. 408
• Court: Minnesota Supreme Court
• Parties: In re BANNON'S WILL. BOWLER et al. v. FAHEY et al.

136 Minn. 408

162 N.W. 515

In re BANNON'S WILL.

BOWLER et al.

v.FAHEY et al.

No. 20219[59].

Supreme Court of Minnesota.

May 11, 1917.

Appeal from District Court, Scott County; J. H. Steele, Judge.

Will contest by Vincent Bowler and others against Mary A. Fahey and others. Judgment for contestees. From an order denying a new trial, contestants appeal. Order affirmed.

Syllabus by the Court

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.

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, of Shakopee, and F. C. & H. A. Irwin, of Belle Plaine, for appellants.

Julius A. Coller, of Shakopee, for respondents.

HOLT, J.

[1] The court below ruled that John J. Fahey, proponent and executor of the will of Stewart Bannon, deceased, could not be called by contestants for cross-examination, under section 8377, G. S. 1913, 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 defendant * * * may be examined by he 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, nevertheless the same decision determined that he was not a party to the proceeding or interested in the event thereof, so that section 8378, G. S. 1913, precluded him from testifying to conversations with...