Ewell v. King
| Decision Date | 13 March 1962 |
| Docket Number | No. 1,No. 19299,19299,1 |
| Parties | Pauline Lane EWELL and Pauline Lane Ewell, Administratrix of the Estate of Marconi E. Ewell, Deceased, Appellants, v. Amanda L. KING, Willie M. Williams and Dillie Clara Williams, and Gary National Bank, Appellees |
| Court | Indiana Appellate Court |
Hilbert L. Bradley, F. L. Anderson, Jr., Anderson, Hicks & Anderson, Gary, for appellant.
Harry O. Schell, Benjamin F. Wilson, Gary, for appellee Amanda King.
This is an appeal from an action to cancel an assignment of a certain real estate contract.
On June 30, 1956, after twenty-three years of married life, Amanda L. King, appellee (plaintiff below), and Marconi E. Ewell, decedent, were divorced. During their marriage appellee King and the decedent purchased through their joint efforts certain real estate. As a part of the divorce settlement the said real estate was conveyed to the decedent by appellee King's quit claim deed dated July 31, 1956. On this same date the decedent and Pauline Lane Ewell, appellant (defendant below), were married. There was evidence to the effect that after the marriage of appellant and the decedent, the decedent continued frequently to see and visit appellee King.
On September 8, 1956, the decedent by a Warranty Deed executed by both himself and appellant, as husband and wife, conveyed the aforesaid real estate to appellee King. The consideration for this deed was the cash sum of $2,500.00, and the proceeds from two mortgages placed on appellee King's separate property in the approximate sum of $3,868.37 and the love and affection that still existed between them.
On November 26, 1956, appellee King by her written contract agreed to sell the aforesaid real estate to Willie M. and Dillie Clara Williams, for the sum of $13,500.00, with monthly payments being in the sum of $140.00. In the contract appellee King designated the decedent as the one to whom the monthly payments were to be made. Also, on that same date appellee King assigned in writing the aforesaid real estate contract to the decedent. The said terms of the assignment are as follows:
'For a valuable consideration, receipt of which is acknowledged, the undersigned hereby sells, assigns, and sets over to Marconi E. Ewell, a certain land contract dated November 26, 1956, executed between Amanda L. King as seller and Willie M. Williams and Dillie Clara Williams, husband and wife, as purchasers for the sale of land situated in the City of Gary, Lake County, Indiana, described as:
(property herein described omitted)
together with all sums due and to become due thereon, and covenants that there is not owing thereon Twelve Thousand Two Hundred and no/100 ($12,200.00) Dollars with interest.'
(Signature and notary's seal has been omitted by this court.)
The aforesaid real estate contract and assignment were placed with the Gary National Bank, in Gary, indiana, for collection.
On July 9, 1957, as a result of a heart condition and while visiting with appellee King in Gary, Indiana, the decedent died. Appellant Pauline had last seen her husband alive on January 7, 1957, when he left to go to California. Appellee King attended to the burial arrangements and paid all burial expenses.
The day after decedent's death appellee King notified the Gary National Bank to deliver to her the contract and assignment and any money on hand pursuant to collections. Appellee King also promptly notified Mr. and Mr. Williams to make no further payments on the said real estate contract to the Gary National Bank, but instead to make them to the First Federal Savings and Loan Association where a copy of the real estate contract had been deposited so that the monthly payments could be applied to the existing mortgage held by the said institution. Mr. and Mrs. Williams made three monthly payments in the sum of $140.00 each on the said contract after the death of decedent and they refused to make any further payments pending outcome of this action.
In August, 1957, appellant, Pauline Lane Ewell, as administratrix of the estate of Marconi E. Ewell, deceased, filed in the Lake Circuit Court her verified petition for disclosure of property and intermeddling against appellee King, joining as defendants the Gary National Bank and Mrs. and Mrs. Williams. The issue in that action related to the real estate contract and the assignment in this action and the consideration for the same. The appellant, Pauline Lane Ewell, as administratrix, alleged that appellee King had concealed assets of the estate and had intermeddled with the said real estate contract and the proceeds therefrom which were the property of the estate. On November 7, 1957, the cause of action was submitted to the court and the court found against the administratrix and for the appellee King.
On December 5, 1957, appellee King filed her complaint in the instant case for cancellation of the assignment of the real estate contract against Pauline Lane Ewell; Pauline Lane Ewell, administratrix of the estate of Marconi E. Ewell, deceased; Willie M. Williams and Dillie Clara Williams, and the Gary National Bank. In substance the complaint alleges that the assignment which was made by appellee King was without consideration and without the promise of any consideration, and was only for the accommodation of Marconi E. Ewell, deceased.
Subsequently the defendant, Gary National Bank, filed an interpleader stating that both appellee King and appellant, Pauline Lane Ewell, as the administratrix of the estate of Marconi E. Ewell, had made demands for the proceeds of the collection in the sum of $139.50, and it deposited this money and the said real estate contract and assignment in the Clerk's office of the court below. Thereupon this action was dismissed as to the said defendant, Gary National Bank.
Various other pleadings were filed by and between the parties. Application for change of judge was granted and a special judge qualified to hear the case. The court made certain findings of facts and conclusions of law and entered its judgment for appellee King. Motion for New Trial was made by appellants which was overruled and assigned as error herein.
One of appellants' specifications in the motion for new trial asserted that the court erred in permitting Amanda L. King to testify as to matters against the estate in these proceedings in which an administratrix is a party, on matters which occurred during the lifetime of decedent.
Appellants strongly objected to this testimony on the grounds that the witness was an adverse party and that her testimony on the issues involved was within the provisions of § 2-1715, Burns' Ind.Anno.Stats. (1946 Replacement). In spite of the repeated objections of appellants, the court allowed the witness to testify.
Burns' § 2-1715 (supra) commonly referred to as the 'Dead Man's Statute,' is as follows:
'In suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate: Provided, however, That in cases where a deposition of such decedent has been taken, or he has previously testified as to the matter, and his testimony or deposition can be used as evidence for such executor or administrator, such adverse party shall be a competent witness for himself, but only as to any matters embraced in such deposition or testimony.' [Acts 1881 (Spec.Sess.), ch. 38, § 276, p. 240.]
Appellee King was the first witness called to testify. Over timely objections by appellant, appellee testified to matters which occurred during the lifetime of decedent concerning the matters in controversy. Appellee King argues however, that the testimony of Dillie Clara Williams (who testified after appellee King) alone was sufficient to make out a prima facie case. It is her contention that where a competent witness makes out a prima facie case for a party, it is not an abuse of the court's discretion to permit the party, who otherwise may not have been competent, to give her version of the transaction.
We agree with appellee's contention based upon the following authorities. Christman, Administrator v. Hack (1926), 86 Ind.App. 79, 156 N.E. 165; Heavin v. Sutherlin (1946), 116 Ind.App. 310, 64 N.E.2d 43, and Talbott, Administrator v. Barker (1894), 11 Ind.App. 1, 38 N.E. 487.
However, in the instant case, appellee King was the first witness to testify in her own behalf as plaintiff. It is elementary, therefore, that at the time appellant made objections to appellee King's competency to testify to matters which occurred during the lifetime of the decedent, concerning the matters in controversy, there had not been a prima facie case made, and this exception to the general rule of the above quoted statute would not apply.
Under the provisions of § 2-1718, Burns' Ind.Anno.Stats. (1946 Replacement), it is provided:
'* * * That, in all cases referred to in sections two hundred and seventy-six (§ 2-1715), * * * any party to such suit shall have the right to call and examine any party adverse to him as a witness, or the court may, in its discretion, require any party to a suit or other person to testify, and any abuse of such discretion shall be reviewable on appeal.'
However, in the instant case, this would have no application because the overruling of objections to the competency of witnesses to testify is not equivalent to an order by the court calling such persons as witnesses. Cupp et al. v. Ayres et al. (1883), 89 Ind. 60; Hensley, Admr. v. Reichert (1925), 83 Ind.App. 325, 147 N.E. 736.
The Supreme Court in the case of Taylor v. Duesterberg (1886), 109 Ind. 165 at page 171, 9 N.E....
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