Conway v. Murphy
| Decision Date | 02 July 1907 |
| Parties | HANORA CONWAY v. HANORA MURPHY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Iowa District Court.-- HON. O. A. BYINGTON, Judge.
ACTION for the appointment of a guardian for Hanora Murphy resulted in an order as prayed, from which she appeals.
Affirmed.
J. M Dower and J. B. Murphy, for appellant.
M. J Wade, R. W. Pugh, and Thos. Stapleton, for appellee.
The jury found the condition of defendant's mind such as to render her incapable of caring for her property in a reasonably prudent manner, and, without reviewing the evidence, it will be enough to say that we deem it sufficient to sustain the verdict. Several rulings are complained of and these will be disposed of in the order presented in argument.
I. One Perry was asked what he had observed with reference to Mrs. Murphy being careful in paying out money, and also if he had seen anything indicating caution in spending money. The objection, as leading, incompetent, and calling for an opinion, was sustained. These inquiries left to the witness's determination what would be careful or indicate caution, and therefore called for conclusions. The facts within his knowledge, if any, might have been elicited, and the jury, instead of the witness, allowed to estimate their effect on the issue being tried. The ruling was correct.
II. Mrs. Kilroy, a daughter, was asked on cross-examination whether Mrs. Murphy told her "about running down the railroad to get away from Lucy's (another daughter) so that she would not have to give this deed to the property." The objection as not cross-examination might well have been sustained, but the negative answer obviated any prejudice, especially in view of her testimony of Mrs. Murphy's account of the matter, given without objection. It appears that she had explained that Lucy's little girl was away visiting, and, as she thought a great deal of her, wanted to go where the child was. The witness had expressed her opinion that her mother was of sound mind, and, after telling what she understood by that term, was asked whether it would be natural for a person of sound mind, eighty years old, to go down the railroad track after a little child whose mother had allowed to stay with a friend over night in order to stay with her. Manifestly, this was to test the value of the witness's opinion. The recital was not accurate; but, in view of the pertinent answer, that it would depend on the degree of attachment between the defendant and the child, and the above account as given by Mrs. Murphy, the variance could not have worked any prejudice.
The main contention, however, is that proof of the declarations was treated as substantive evidence. The declarant was a party to the action. She had not been adjudged insane, and her admissions and declarations were receivable in evidence under the rules applicable to other actions. Appellant seems to rely first on decisions to the effect that declarations of a testator as to what had been done or said in procuring the execution of the will is merely hearsay as to the matter recited. See Johnson v. Johnson 134 Iowa 33. These are not in point, for the reasons already indicated. Cases also are cited in which inconsistent statements made out of court are held merely to affect the credibility of the witness. See Eastman v. Railway Co., 101 Mich. 597 (60 N.W. 309). Such statements are not received as tending to show that the facts recited are true when not in issue, but as tending to show that the witness in making different statements under oath is not entitled to belief. The rule is otherwise when the admissions or declarations directly bearing on the issues being tried are sought to be proven by the adverse party. Such evidence is substantive, and to be considered in determining the issue concerning which the declarations or admissions have been made. This account by defendant of what she had done, if accepted as true,...
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