Diffenderfer v. Scott

• Decision Date: 13 October 1892
• Citation: 5 Ind.App. 243,32 N.E. 87
• Parties: DIFFENDERFER v. SCOTT.
• Court: Indiana Appellate Court

5 Ind.App. 243

32 N.E. 87

DIFFENDERFER

v.SCOTT.

Appellate Court of Indiana.

Oct. 13, 1892.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Claim of Almira Scott, by her next friend, against Isabella A. Diffenderfer, executrix of Ruth M. Wells, deceased. Judgment for claimant. Executrix appeals. Reversed.Worden & Morris, for appellant. R. Lowry and M. V. B. Spencer, for appellee.

Crumbacker, J.

Almira Scott, an infant, by Julia A. Scott, her next friend, filed a claim against Isabella Diffenderfer, executrix of the will of Ruth M. Wells, deceased, based upon a promissory note for the sum of $3,000 and interest. It is alleged in the statement of the claim that on the 15th day of January, 1885, Almira Wells “executed and delivered her certain promissory note to Julia A. Scott, payable at the Old National Bank of Fort Wayne, Indiana, to Julia A. Scott or Almira Scott, her child, in seven years, with eight per cent. interest, and attorneys' fees; that said Julia A. Scott assigned said note to the claimant by indorsement; that on the 21st day of June, 1886, said Almira Wells died testate in Allen county, Indiana, having devised and bequeathed all of her estate to Ruth M. Wells, her sister; that the will of said Almira was duly admitted to probate in said county, and her estate was settled thereunder in the Allen circuit court, the final settlement being made in November, 1887; that the claimant was for six months before said settlement and still is an infant; that said Ruth M. Wells received property under the will of said Almira of the value of twelve thousand dollars; that said Ruth M. Wells died testate in said county on the 2d day of October, 1889, and by will appointed the defendant her executrix, which will was duly probated, and the executrix took upon herself the duties of the trust.” A copy of the note was filed with the statement, and is according to the tenor following: “$3,000. Fort Wayne, January 15th, 1885. Seven years after date I promise to pay to the order of either Julia A. Scott or Almira Scott, her child, three thousand dollars, at the Old National Bank of Fort Wayne, Indiana, for value received, without any relief whatever from valuation or appraisement laws, with eight per cent. interest from ------ until paid, and attorneys' fees. The drawer and indorser severally waive presentment for payment, protest, and notice of protest and nonpayment of this note. Almira Wells.” An answer of the general denial forms the issues, and the cause was tried by a jury. A verdict was returned in favor of the claimant for $4,765, upon which judgment was rendered. The executrix appeals, and relies for a reversal of the judgment upon causes assigned in the motion for a new trial.

The evidence disclosed that, at the time the note was given, Almira and Ruth M. Wells were aged spinsters, living together in the city of Ft. Wayne, and Julia A. Scott, with her family, lived near them. Appellee was born of Julia A. Scott on the 29th day of January, 1884. There was evidence tending to show that, several months prior to the birth of appellee, Mrs. Scott and Almira Wells held conversations upon the subject of giving the prospective babe the name of Almira, if it could be done with deference to its sex, in honor of Almira Wells; the latter promising in that event to provide for the education of the child. After the birth, Almira Wells renewed her request and promises, and in consideration thereof, when appellee was several weeks old, she was named Almira, and on the 15th day of January, 1885, the note in controversy was given by Almira Wells in pursuance of her agreement to provide for appellee. The note was delivered to Mrs. Scott for appellee's benefit, and about three weeks before the claim was filed Mrs. Scott assigned her interest in the note to appellee. Almira Wells died in 1886, leaving her entire estate, valued at about $12,000, to Ruth M. Wells, her sister. Her estate was settled in the Allen circuit court finally in November, 1887. No claim was filed against the estate for the note in question. Ruth M. Wells died in 1889, testate, leaving considerable portions of her estate to public charities.

Three grounds of defense were insisted upon at the trial, viz.: First, the note was not genuine; second, if genuine, the note was given to Julia A. Scott in trust for the appellee, and action upon it was barred by the settlement of the estate of Almira Wells; and, third, the note was not supported by a sufficient consideration. The last ground is not urged in this court, and, under the decision in Wolford v. Powers, 85 Ind. 294, the naming of appellee would be an adequate consideration for the note. There was evidence justifying the conclusion that appellee was named in consideration of the promise of Almira Wells to provide for her education, but the amount and character of the provision were not settled upon until about 10 months afterwards, the time the note was given. The negotiations were conducted exclusively by Mrs. Scott upon the one side and Almira Wells upon the other although others were present at conversations between them respecting the subject-matter of the agreement, and also at the time the note was signed.

The will of Ruth M. Wells was read in evidence, over the objection of the appellant. Her estate was sought to be charged with the payment of the note, upon the theory that she was the devisee of Almira Wells; and her will, disposing of the property devised to her by the deceased sister, was evidence of her acceptance of the devise. This fact might have been taken as true upon the proposition that the law will presume the acceptance of a beneficial provision in the absence of evidence showing a contrary intention, but the admission of evidence also of such acceptance cannot be regarded as reversible error.

Upon the trial, appellant introduced Mrs. Scott as a witness, and examined her quite fully respecting the transaction involved in the suit, in all its phases. Her testimony was adverse to the interest of appellant, and the latter afterwards called other witnesses, and proffered testimony impeaching the credit of Mrs. Scott by proof of bad character, which was rejected by the court. This is relied upon as error. Section 507, Rev. St. 1881, provides that a party producing a witness shall not be allowed to impeach his credit by evidence of bad character, unless it was indispensable that the party should produce him, or in case of manifest surprise, when the party shall have such right. This is but the enactment of the common-law rule as it is recognized and applied in most of the states of this country and in England. The right of impeachment is not claimed in this case upon the ground of surprise, as Mrs. Scott is the mother and next friend of appellee, and verified the statement of the claim, so appellant had no reason to expect favorable testimony from her; but it is insisted that she was an indispensable witness. Several witnesses had already testified to conversations with the maker of the note, in which she admitted her agreement to make substantial provision for the education of appellee in consideration of her name; and others, that they were present, and saw her sign the note and deliver it to Mrs. Scott for appellee's use and benefit. The rule is quite general that where one is required to produce a particular witness to satisfy the demands of the law, as the subscribing witness to a will, he is not bound by the testimony of such witness, but may impeach his credit by evidence of bad character. Thornton v. Thornton, 39 Vt. 122; Harden v. Hays, 9 Pa. St. 151; Dennett v. Dow, 17 Me. 19;Olinde v. Saizan, 10 La. Ann. 153;Williams v. Walker, 2 Rich. Eq. 291; 1 Greenl. Ev. § 443. Appellant was under no legal obligation to use Mrs. Scott as a witness, and, if the exigencies of her case were such as to make it seem expedient to do so, she will not be permitted to dispose of the prejudicial evidence by attacking the character of the witness. Appellant was in quest of evidence to prove the note was a forgery, and she had no reason to expect such testimony from Mrs. Scott, who had all along been insisting upon its genuineness. The rules of practice will not permit a party to call a witness closely connected with the adversary cause, and from whom he has no reason to expect favorable testimony, and then to assail the character of the witness by impeachment. By this means the adversary's cause might often be unfairly prejudiced, and justice be thwarted. The case of Becker v. Koch, 104 N. Y. 394, 10 N. E. Rep. 701, is cited in support of the right to the rejected evidence, but it only requires a superficial examination of that case to discover that it does not lend any support to such right. On the other hand, it is in full accord with the current of authorities upon the proposition that an indispensable witness is one a party is compelled to produce to satisfy the requirements of the law. There was no error in excluding the evidence.

In her testimony Mrs. Scott stated that she was present when the note was signed, and that two other persons were there besides herself and Almira Wells. She was asked by counsel for appellant if she had not been engaged as housekeeper for one Dr. Blodes, which she admitted; and she was then asked if she did not state to Dr. Blodes during that time that no one was present when the note was signed except herself and Almira Wells. This question she answered in the negative. Then counsel propounded the following questions: “Did you not state it to Mrs. Long? Did you not state it to Mrs. Bittinger?”-both of which were answered in the negative. After Mrs. Scott was dismissed from the witness stand, Bittinger was called by appellant, and asked if Mrs. Scott did not state to him at a given time and place that no one was present when the note was signed except herself and Miss Wells. Objections were sustained to the question, upon the ground, among...