French v. French

• Citation: 84 Iowa 655,51 N.W. 145
• Parties: FRENCH v. FRENCH.
• Decision Date: 09 February 1892
• Court: Iowa Supreme Court

84 Iowa 655

51 N.W. 145

FRENCH

v.FRENCH.

Supreme Court of Iowa.

Feb. 9, 1892.

Appeal from district court, Mitchell county; G. W. RUDDICK, Judge.

Action to recover an amount alleged to be due on a promissory note. There was a trial by jury, and a verdict and judgment in favor of defendant. The plaintiff appeals.J. M. Moody, M. M. Browne, and C. D. Ellis, for appellant.

Eaton & Clyde, for appellee.

ROBINSON, C. J.

The note in suit was given by defendant on the 7th day of December, 1883, for the sum of $610, with interest thereon at 7 per cent. per annum. It was made payable to Seth P. French, and was by him assigned to the plaintiff. J. W. French, the husband of defendant, died in June, 1877, possessed of notes and mortgages of the value of $6,000 or more. Administration of his estate was not granted, but defendant took possession of the property, and apparently retained it for her own benefit. When the note in suit was given, Seth P. French, who is the husband of plaintiff, and a son of defendant and her late husband, presented to the defendant an instrument in the form of a promissory note for the sum of $321 and interest, which purported to have been given by the deceased in the year 1874, and to be payable to Seth. He demanded payment of the note, insisting that his mother was responsible for its payment, because she had appropriated the property which belonged to his father's estate to her own use; and the note in suit was given in settlement of the demand thus made. The defendant claims that her note was given without consideration, and that she was induced to make it by the representations of Seth that the note for which he demanded payment was given by his father; that it was due and wholly unpaid; and that defendant was legally bound to pay it. Defendant avers that these representations were false and fraudulent, and known to be so by Seth, but that she believed them to be true, and relied upon them in making the note in suit. Of the defenses pleaded the only one submitted to the jury was that of want of consideration.

1. It was claimed on the part of the plaintiff that the note for $321 was given for money loaned to J. W. French, the most of which was furnished by her; and that she owned the note when it was given, notwithstanding the fact that it was made payable to her husband. She was asked as a witness to state the consideration of the note, but her testimony as to that was objected to on the ground that it was incompetent, relating to a personal transaction with a person deceased, and the objection was sustained. Section 3639 of the Code provides that “No party to any action or proceeding * * * shall be examined as a witness in regard to any personal transaction or communication between such witnesse and a person at the commencement of such examination deceased, insane, or lunatic, against the executor, adminstrator, heir at law, next of kin, legatee, devisee, or survivor of such deceased person.” Defendant is not an executor or administrator within the meaning of the statute. She can be regarded at most only as an executrix de son tort; but, as her acts in administering the estate of her deceased husband have been without authority of law, she is not entitled to the protection of the statute as executrix or administratrix. She is not an heir at law of her deceased husband. Phillips v. Carpenter, 79 Iowa, 600, 44 N. W. Rep. 898. It is not claimed that she is an assignee, legatee, or devisee, and there is no ground for claiming that she is a survivor. Reynolds v. Insurance Co., 80 Iowa, 565, 46 N. W. Rep. 659. If she is entitled to the protection of the statute, it must be for the reason that she is “next of kin,” within its intent. Primarily the word “kin” includes only relation, or relationship by blood or consanguinity; and the term “next of kin” would not, by that rule, include a widow. Black, Law Dict. 678; And. Law Dict. 589; Keteltas v. Keteltas, 72 N. Y. 315; Walter v. Walker, 62 Ga. 145; Farr v. Flood, 11 Cush. 25. But it is sometimes used in a broader sense, to include relations by marriage. Thus, under a statute in regard to changes of forum, which provides that “when it shall appear that the justice is near of kin to either party he shall remove the case to some other justice of the same county,” it was held that the word “kin” included relations by marriage. Hibbard v. Odell, 16 Wis. 664. The words “next of kin,” in a statute which provided for the bringing of an action against an executor or administrator “by any legatee, or by any of the next of kin [of the decedent] entitled to share in the distribution of the estate,” have been held to include the widow of the decedent. Betsinger v. Chapman, 88 N. Y. 491. A statute of the state of Ohio gave to the personal representative of a person whose death was caused by the wrong of another, a right of action “for the exclusive benefit of the widow and next of kin of such deceased person.” It was held that the term “next of kin” included the husband. Steel v. Kurtz, 28 Ohio St. 195. See, also, Power v. Hafley, (Ky.) 4 S. W. Rep. 683. The rule to be drawn from these authorities is in harmony with that which governs the construction of statutes generally, and which requires us to so interpret them as to give force and effect to the legislative intent where that is clearly expressed. The statute under consideration was designed to protect persons claiming some right or title from a person who at the time of the examination is dead or incompetent to testify by reason of mental unsoundness. The widow who claims under the will of her deceased husband is entitled to the protection of the statute. But if her husband died intestate, or if she refuse to accept the provisions of his will, she is as clearly within the spirit of the statute as though she claimed under his will. It cannot be accepted as true that the legislature intended to protect the widow only when she claimed as devisee or legatee. No good and sufficient ground for such a theory has been suggested. We conclude, therefore, that the words “next of kin” were used in the statute in the broader sense, which includes relatives by marriage, who are entitled by law to a distributive share in the estate of the decedent. The evidence in question was properly excluded.

2. The court instructed the jury as follows: “It is claimed by the plaintiff that this note in suit was given by the defendant in exchange for a note given to the plaintiff's husband by the defendant's husband in his life-time, and that note was the consideration of this one. If the note given by defendant's husband represented a valid and subsisting indebtedness at the time of his death and up to the time of the giving of the note in suit, its surrender to the defendant would be a good and valid consideration for her note, now in suit, and there would be a presumption that there was a sufficient consideration to support the note of defendant's husband; but this is a mere presumption, and may be...