Carlson v. Bankers Trust Co.

• Decision Date: 13 November 1951
• Docket Number: No. 47968,47968
• Citation: 242 Iowa 1207,50 N.W.2d 1
• Parties: CARLSON v. BANKERS TRUST CO.
• Court: Iowa Supreme Court

Page 1

50 N.W.2d 1

242 Iowa 1207

CARLSON v. BANKERS TRUST CO.

No. 47968.

Supreme Court of Iowa.

Nov. 13, 1951.

Holliday & Myers, and L. B. Bartholomew, all of Des Moines, for executor-appellant and cross-appellee.

Hallagan & Lucier, of Des Moines, for claimant-appellee and cross-appellant.

GARFIELD, Justice.

Plaintiff moved to dismiss the executor's appeal on the ground its brief does not comply with rule 344, Rules of Civil Procedure. The brief does fail to comply in several respects with this rule. For example there is no reference in the statement of facts or argument to lines of the record as required by rule 344(a)(2). The statements of errors relied on for reversal contain no references to the record to show the manner in which the error arose and the ruling of the court thereon as required by rule 344(a)(4) (First). Some brief points do not state the grounds of complaint of the ruling as required by 344(a)(4) (Second). There are other deficiencies.

We do not approve noncompliance with our rules. Substantial compliance with them is the litigant's only safe course. Patterson v. Wuestenberg, 239 Iowa 658, 663, 664, 32 N.W.2d 209, 212. However, we are reluctant to dismiss the appeal upon the grounds urged and have concluded to overrule the motion. But counsel are cautioned to comply with rule 344 in preparing their briefs. Lack of substantial compliance may result in dismissal of the appeal.

Since the executor has not argued its second assigned error it will be deemed waived. Rule 344(a)(4) (Third); Tuttle v. Nichols Poultry and Egg Co., 240 Iowa 199, 210, 35 N.W.2d 875, 880, and citations; State v. Erb, 238 Iowa 612, 615, 28 N.W.2d 24, 26, and citations.

Testatrix Bertha Denholm, a widow aged 69, died December 28, 1949. Plaintiff Frances Carlson is her only child. Her will, later probated, made June 4, 1948, leaves a cousin, Allan Clark of Pasadena, California, some corporate stock, her residence in Des Moines, and the furniture and other personalty therein. The will leaves plaintiff some shares of stock and the rest of her property.

In her amended claim plaintiff alleges that on December 25, 1949, testatrix in contemplation of death gave her the furniture and other personalty in testatrix' home and the contents of her safety deposit box in Bankers Trust Company of Des Moines (executor herein). The executor's answer is a denial and a plea the amended claim is barred by section 635.68, Code 1950, I.C.A.

A jury was waived. After trial the court held a gift to plaintiff was established of the furniture and effects in the home and the contents of the safety deposit box but not of three bank accounts and a government bond of $25. Both parties have appealed. We consider the executor's appeal first.

I. Plaintiff's husband was permitted to testify to a conversation between testatrix and plaintiff at the latter's home on Christmas Day, 1949, over defendant's objection he was incompetent under section 622.4, Code 1950, I.C.A., which provides: 'No party to any action * * *, nor any person interested in the event thereof, * * * and no husband or wife of any said party * * *, shall be examined * * * in regard to any personal transaction or communication between such witness and a person * * * deceased * * * against the executor, * * *.'

Defendant has attempted at some length to show both in the trial court and here that Mr. Carlson was an incompetent witness under this statute because, it is said, he is 'interested in the event' of the action. While of course the interest of a witness may always be shown as affecting his credibility, it was unnecessary for defendant to attempt to show Mr. Carlson's interest as a basis for objecting to his competency under section 622.4. The mere fact he is the husband of plaintiff renders him incompetent, under the pain terms of the statute, to testify to any communication between him and testatrix as against her executor.

However, under our repeated holdings plaintiff's husband is not incompetent to testify to a conversation between plaintiff and testatrix in which the witness took no part. O'Dell v. O'Dell, 238 Iowa 434, 446, 26 N.W.2d 401, 407, and citations; Hansen v. Waugh, 237 Iowa 304, 316, 21 N.W.2d 762, 768; Meredith v. Cockshoot, 235 Iowa 213, 221, 16 N.W.2d 221, 225.

Here plaintiff's husband testified he took no part in the conversation between plaintiff and her mother in which the latter told the former "I have given you everything I have now. That means everything in the house, all I have in my safety box, all the personal property I own,' and she also reminded her there were passbooks in--I believe it was a purse she said in the china closet, and she wanted her to be sure if anything happened to her she would take care of that. And she said 'Now here is the key to the house and the key to the safety box. Put it away and take care of it."

It is true Mr. Carlson greeted Mrs. Denholm when she arrived at the Carlson home with his wife by saying he was glad she could come, asking her how she felt and to remove her coat. But this preceded the conversation he says he overheard and was no part of it. Also, after the conversation he says he overheard, his wife turned to him and asked him to take the keys and put them in a safe place, which he did. The trial court was justified in finding this request directed to Carlson alone was also no part of the conversation between mother and daughter. Neither the greeting nor the request of his wife to put the keys in a safe place rendered Mr. Carlson incompetent to testify to that conversation.

See in support of our conclusion Brierly v. Dunnick, 240 Iowa 1359, 1364, 1365, 39 N.W.2d 645, 648, 649; O'Dell v. O'Dell, supra, 238 Iowa 434, 446, 447, 26 N.W.2d 401, 407, 408; In re Estate of LaGrange, 191 Iowa 129, 132, 181 N.W. 807; Calhoun v. Taylor, 178 Iowa 56, 61, 159 N.W. 600, 601, where it is said: 'On cross-examination (of plaintiff's husband) it appeared that the witness had engaged in conversation with decedent on other subjects while at the table, but had not participated in that concerning his dealings with his children. That the witness may have spoken with decedent on some other subjects disconnected from the conversation exclusively between father and daughter did not preclude him from testifying to what was said in the latter. The test is whether the witness objected to as incompetent took part in the particular conversation on the subject inquired about, and if he did not his testimony is to be received for what it is worth. (Citations.)'

This same quotation appears in Brierly v. Dunnick, supra. See also 70 C.J., Witnesses, § 458, page 346.

In re Estate of LaGrange, supra, holds a daughter claiming certificates of deposit as a gift from her deceased father was not incompetent under what is now section 622.4 to testify she placed the certificates in a suitcase in the presence of her father. The decision is cited with approval in O'Dell v. O'Dell, supra, where plaintiff at the request of her deceased husband brought him a strong box in which he searched for a contract which was missing. Decedent then called his son and conversed with him regarding the contract. We held plaintiff was not incompetent, simply because she brought the box to her husband, to testify to his search of the box and his conversation with his son. The O'Dell case in turn is approved in Brierly v. Dunnick, supra.

See also In re Estate of Fili, 241 Iowa 61, 68, 40 N.W.2d 286, 290, where we say: 'The witness may testify as to his own independent acts or conduct in which decedent did not participate. (Citations.)'

We are committed to the view section 622.4 is not to be enlarged by construction and those whom the statute designates incompetent will be held so only as to the particular kind of testimony clearly forbidden by the statute. See In re Estate of Schultz, 196 Iowa 125, 194 N.W. 242; In re Estate of LaGrange, supra, 191 Iowa 129, 132, 181 N.W. 807; Secor v. Siver, 188 Iowa 1126, 1131, 161 N.W. 769, 176 N.W. 981; Curd v. Wisser, 120 Iowa 743, 746, 95 N.W. 266. This accords with the construction many courts place upon like statutes. 58 Am.Jur., Witnesses, section 216; 70 C.J., Witnesses, section 275, pages 208, 209; Article by Mason Ladd, 19 Iowa Law Review 521, 538.

Mr. Carlson's testimony that he took no part in the conversation between his wife and her mother was a proper matter for the trial court to consider in weighing his evidence as to what was said between them and in passing on his credibility. Hart v. Hart, 181 Iowa 527, 530, 164 N.W. 849. We may assume it was so considered by the trial court who, in the absence of a jury, was sole judge of the credibility of the witnesses.

II. Defendant (executor) challenges the sufficiency of the evidence to support the judgment. The trial court's findings of fact have the force and effect of a jury verdict and are conclusive upon us if supported by substantial evidence. The case is not reviewable de novo here but only upon the errors assigned. Rule 334, Rules of Civil Procedure; In re Estate of Conner, 240 Iowa 479, 487, 36 N.W.2d 833, 838; Roth v. Headlee, 238 Iowa 1340, 1342, 29 N.W.2d 923, 924, and citations; In re Estate of LaGrange, supra, 191 Iowa 129, 134, 135, 181 N.W. 807. It was for the trial court to determine the weight of the evidence. Roth v. Headlee, supra, and citations.

Defendant is mistaken in asserting the proof must be clear, satisfactory and convincing. That requirement prevails in an action in equity to enforce a decedent's oral contract to dispose of property. Williams v. Harrison, 228 Iowa 715, 723, 293 N.W. 41, 44, and citations; Bosserman v. Watson, 230 Iowa 627, 639, 298 N.W. 804; Stolar v. Turner, 237 Iowa 593, 606, 607, 21 N.W.2d 544.

In such a probate action as this, tried as an ordinary action at law, only a preponderance of evidence is required. In re Estate of Dolmage, 204 Iowa 231, 234-237, 213 N.W. 380, and citations; In re Estate of Newson...