O'Bryan v. Allen

• Decision Date: 22 December 1891
• Citation: 18 S.W. 892,108 Mo. 227
• Parties: O'Bryan et al. v. Allen et al., Appellants
• Court: Missouri Supreme Court

18 S.W. 892

108 Mo. 227

O'Bryan et al. v. Allen et al., Appellants

Supreme Court of Missouri, First Division

December 22, 1891

Appeal from Cooper Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed.

Douglas & Scudder and J. R. Walker for appellants.

(1) Mrs Harriet G. O'Bryan was incompetent as a witness. R. S 1879, sec. 4010; Sess. Acts, 1887, p. 287; Moore v Moore, 51 Mo. 118; Moore v. Wingate, 53 Mo 398; Willis v. Gammill, 67 Mo. 730; Holman v. Bachus, 73 Mo. 49. (2) Henry M. Thompson was not a competent witness. R. S. 1879, sec. 4010; Sess. Acts, 1887, p. 287; Paul v. Leavitt, 53 Mo. 595; Haerle v. Kreihn, 65 Mo. 202; Joice v. Branson, 73 Mo. 28; Wood v. Broadley, 76 Mo. 23. (3) Mrs. Maria G. Allen and Mrs. Clara D. Thompson were not competent witnesses. R. S. 1879, sec. 4010; Sess. Acts, 1887, p. 287. (4) The general reputation in the community as to the ownership of the farm was competent evidence. Darrett v. Donnelly, 38 Mo. 492; Benoist v. Darby, 12 Mo. 196; Dickerson v. Chrisman, 28 Mo. 134; Railroad v. Clark, 68 Mo. 371; Wilson v. Albert, 89 Mo. 537. (5) To establish a gift, the proof must be so clear, definite, unequivocal and cogent as to leave no room for doubt. Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268; Woodford v. Stephens, 51 Mo. 443; Atkinson v. Henry, 80 Mo. 151; Jackson v. Wood, 88 Mo. 76; Philpot v. Penn, 91 Mo. 38; Adams v. Burns, 96 Mo. 361; Allen v. Logan, 96 Mo. 591; Modrell v. Riddle, 82 Mo. 31; Rogers v. Rogers, 87 Mo. 257; Moore v. Crawford, 130 U.S. 122; Berry v. Hartzell, 91 Mo. 132; Burdett v. May, 100 Mo. 13. (6) This is especially true in cases between parent and child. Jones v. Tyler, 6 Mich. 364; Ackerman v. Fisher, 57 Pa. St. 457; Worth v. Worth, 84 Ill. 442; Ackerman v. Ackerman, 24 N.J.Eq. 316; Hugus v. Walker, 12 Pa. St. 173; Poorman v. Kilgore, 2 Casey, 365; Cox v. Cox, 2 Casey, 375. (7) The entire proof in this case consists of admissions and loose declarations of Henry Bell, deceased, which are entitled to but small weight and are to be received with great caution. Woodford v. Stephens, 51 Mo. 443; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Cornet v. Bertelsmann, 61 Mo. 118; Paris v. Haley, 61 Mo. 453; Melton v. Smith, 65 Mo. 315; Modrell v. Riddle, 82 Mo. 31; Berry v. Hartzell, 91 Mo. 132; Carney v. Carney, 95 Mo. 353; Hugus v. Walker, 12 Pa. St. 173; Dragoo v. Dragoo, 50 Mich. 573; Burdett v. May, 100 Mo. 13. (8) The evidence in this case is not sufficient to support the decree. Adams v. Burns, 96 Mo. 361; Dragoo v. Dragoo, 50 Mich. 573; Wright v. Wright, 31 Mich. 380; Forward v. Armstead, 12 Ala. 124; Eckert v. Mace, 3 Pa. 364; Eason v. Eason, 61 Tex. 225; Waterman on Spec. Perf., sec. 285; Shellhammer v. Ashbaugh, 83 Pa. St. 24; Veth v. Gierth, 92 Mo. 97; Isaacs v. Skrainka, 95 Mo. 517.

John Cosgrove and J. H. Johnston for respondents.

(1) Mrs. O'Bryan, the plaintiff, was a competent witness. O'Bryan v. Allen, 95 Mo. 68. She was not rendered incompetent by Revised Statutes, 1889, section 8918. (2) A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, is to be deemed retrospective or retroactive. Sedgwick, Stat. & Const. Law, 188; Ins. Co. v. Flynn, 38 Mo. 483; Barton Co. v. Walser, 47 Mo. 200; St. Louis to use v. Clemens, 52 Mo. 144. (3) The widow in a suit for assignment of dower is not held to strict proof of her husband's title. It is only necessary that her case be made out with reasonable certainty; any other degree of certainty in a case of this kind is unattainable. Gentry v. Woodson, 16 Mo. 224; Scribner on Dower, p. 237; 2 Scrib., p. 199; Neale v. Neale, 9 Wall. (U.S.) 1. (4) The evidence in this case clearly proves all the allegations of plaintiff's petition, and the court below was fully warranted in rendering the judgment it did. Peters v. Jones, 35 Iowa 512; Burkholder v. Ludlam, 30 Gratt. (Va.) 255; Hardesty v. Richardson, 44 Md. 617; Langston v. Bates, 84 Ill. 524; Story v. Black, 5 Montana, 26; Anderson v. Shockley, 82 Mo. 250; West v. Bundy, 78 Mo. 407; Halsa v. Halsa, 8 Mo. 303.

Brace, J. Sherwood, C. J., and Black, J., concur.

OPINION

Brace, J.

The plaintiffs are the widow of Noah D. Bell, deceased, and her present husband. Noah D. Bell, deceased, was a son of Henry Bell, deceased. The defendants, Maria G. Allen, Clara D. Thompson and Henry Bell, are the children of the plaintiff Harriet, and her former husband, Noah D. Bell. Defendant, D. D. Bell, is a son of Henry Bell, deceased. Ernest Bell and Clara Bell Tracy are the children of Dan Bell, deceased, who was a son of Henry Bell, deceased.

The action is in the nature of a bill in equity to declare that the said Noah D. Bell died seized in equity of an inheritable estate in a tract of land in Cooper county, containing about two hundred and twenty-three acres, in which the said Harriet is entitled to dower, and for its assignment, upon the ground that the said Henry Bell, in his lifetime, made a parol gift of said land to his said son, Noah D., but died seized in fee simple of the legal estate therein, without conveying the same to the said Noah D. The defendants, D. D. Bell, Ernest Bell and Clara Bell Tracy, answered, denying all the material allegations of the petition, and setting up the statute of frauds. The other defendants made no answer. The issues of fact were submitted to a jury, who found for the plaintiffs, and the court decreed in accordance with the prayer of the petition. Commissioners were appointed and dower assigned plaintiff in the land also as prayed for, and the defendants who joined issue appeal.

I. On the trial before the jury the plaintiff, Mrs. O'Bryan, and her two children, the defendants, Mrs. Allen and Mrs. Thompson, as also Mr. Thompson, her husband, were introduced, and, over the objections of the defendant (to their competency as witnesses), were permitted to testify, and this is complained of as error.

When this case was here before (O'Bryan v. Allen, 95 Mo. 68, 8 S.W. 225) the same point was made and passed upon as to the competency of Mrs. O'Bryan. We then held that she was a competent witness under section 4010, Revised Statutes of 1879, on the ground that "she was not one of the original parties to the contract or cause of action on trial." Since that decision was made, and before the trial of this case in the court below, from which this appeal is taken, said section was amended so that the first proviso thereof then and now reads: "That in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or, if living, would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor, except as in this section is provided." * * * Sess. Acts, 1887, p. 287; R. S. 1889, sec. 8918.

The amendment consisted in inserting in the original section the words in italics. There can be no question under this amendment that the witnesses objected to were disqualified to testify upon the issues on this trial at the time they were called, and the court committed error in permitting them to testify. It is urged, in support of the ruling of the court, that at the time this amendment was passed, this cause was pending; that there had then been one trial in the case, in which the plaintiff had the benefit of the evidence of some of these witnesses, they being, under the law as it then stood, competent witnesses; and that the plaintiff, therefore, had some vested right in their evidence, which is entitled to the protection of the constitutional provision prohibiting the passage of a law "impairing the obligation of the contracts or retrospective in its operation."

It is not seen how this contention can be maintained. Laws which change the rules of evidence relate to the remedy only, may be applied to existing causes of action, and are not precluded from such application by the constitutional provision. Cooley on Con. Lim. [3 Ed.] p. 288. The learned author in another connection thus states the doctrine upon this subject: "A right to have one's controversies determined by existing rules of evidence is not a vested right. These rules pertain to the remedies which the state provides for its citizens; and, generally, in legal contemplation they neither enter into and constitute a part of any contract, nor can be regarded as being of the essence of any right which a party may seek to enforce. Like other rules affecting the remedy, they must, therefore, at all times be subject to modification and control by the legislature; and the changes which are enacted may lawfully be made applicable to existing causes of action even in those states in which retrospective laws are forbidden; for the law as changed would only prescribe rules for presenting the evidence in legal controversies in the future, and it could not, therefore, be called retrospective even though some of the controversies upon which it may act were in progress before." Cooley, Con. Lim., p. 367; State v. Grant, 79 Mo. 113.

The trend of modern legislation has been until recently in the direction of enlarging the class of competent witnesses, and the rulings in most of the cases have been upon legislation making those competent who before were incompetent to testify, but the principle is the same in the one as in the...