Hamilton v. Bethel
Decision Date | 17 November 1964 |
Docket Number | No. 51420,51420 |
Citation | 256 Iowa 1357,131 N.W.2d 445 |
Parties | Howard HAMILTON, Administrator of the Estate of James Bethel, Sr., Appellee, v. William BETHEL, Maxine Bethel, and Jean Bethel Johnson, Appellants. |
Court | Iowa Supreme Court |
John Mitchell, Fort Dodge, for appellants.
Hamilton & Schill, Fort Dodge, for appellee.
This is a suit in equity by Howard Hamilton, administrator of the estate of James Bethel, deceased, for judgment against defendants William and Maxine Bethel, husband and wife, on a promissory note for $9000 made by them February 28, 1950, payable to James and Susan Bethel, William's parents, and to foreclose a land mortgage securing payment of the note. Susan predeceased James leaving a will under which he was sole beneficiary. The defense was that the parents made a gift of the note to William in August, 1957. Following trial to the court, there was a decree for plaintiff from which defendants William and Maxine appeal.
It is admitted the note was given for a loan of $9000 the parents made to William at the time it was given. William's sister, Jean Bethel Johnson, also loaned him $8900 she had saved. William and wife also executed a note to Jean for the $8900. The notes were due February 28, 1970, and bore interest at four per cent payable annually. Both notes were secured by a mortgage on an 80-acre farm the makers purchased with proceeds of the loans and $1700 of William's money. (The purchase price was $19,600.) The farm was purchased after William was notified in 1949 to move from the farm he was then renting.
William paid his sister Jean $1100 plus interest on the note she held but paid nothing on the note in suit except the interest for the first nine years. No interest was paid after the instalment due February 28, 1959. In the petition filed in April, 1961, plaintiff elected, in accordance with the option given the holder by the terms of the note, to declare the principal due and payable because of failure to pay interest.
Subject to the objection he was an incompetent witness under section 622.4, Code 1962, I.C.A., the dead man statute, William testified that on a Sunday morning in August, 1957, his mother gave him the note and said, Also that his father said, William was the sole witness to the claimed gift of the note.
Subject to a like objection, William and Maxine testified that on February 10, 1960, the former's father was staying with them and told them he did not want any interest on the note and told Maxine to write a check to him for $9000, put on it that the interest and mortgage were paid in full, he'd endorse it and it would be their receipt; Maxine then wrote and signed William's name to a check for $9000 with a notation on it 'pd in full mortgage'; the father endorsed the check; it was never presented for payment and it is admitted there was not money in the bank with which it could have been paid. The father died April 7, 1960. The mother had died July 8, 1958.
On defendants' cross-examination of William's sister Jessie Linn, she testified that in August, 1960, William came to her house and said he came to see what she thought about the note 'the folks' gave him; she replied, 'They did not give you that note'; asked why she said that to her brother, she answered in part, 'From the conversation between my folks and me I knew they had never cancelled any debt.' On redirect examination Jessie testified without objection that her brother gave her the impression he still owed the money.
The trial court held William was incompetent under Code section 622.4, I.C.A., to testify to the claimed gift of the note; that he and his wife were likewise incompetent to testify to the transaction with decedent regarding the $9000 check in February, 1960; the burden to prove the gift by clear and satisfactory evidence was upon them; no presumption the note was discharged arose from William's possession of it before maturity; if such presumption were held to exist, considerable doubt was cast upon William's possession of the note held by his deceased parents; the equities are with plaintiff and he is entitled to judgment on the note and foreclosure of the mortgage.
I. Our review is de novo. Rule 334, Rules of Civil Procedure, 58 I.C.A. However, especially when considering the credibility of witnesses, we give weight to the findings of the trial court, but are not bound by them. Citation of authorities is unnecessary. Rule 344(f) 7, R.C.P.
The trial court seems to have considered the case with unusual care. More than two months after the court's decision was filed, defendants filed a motion for new trial, the court reconsidered the vital questions raised and adhered to the conclusions previously reached.
II. The burden was upon defendants to prove the claimed gift of the note by clear, satisfactory and convincing evidence. Bosserman v. Watson, 230 Iowa 627, 639, 642-643, 298 N.W. 804, 810, 812, and citations; Williams v. Harrison, 228 Iowa 715, 723, 293 N.W. 41, 44, and citations. See also Carlson v. Bankers Trust Co., 242 Iowa 1207, 1214, 50 N.W.2d 1, 6, and citations; Meredith v. Cockshoot, 235 Iowa 213, 220, 16 N.W.2d 221, 225.
Bosserman v. Watson, supra, was an action in equity, much like this, by a decedent's administrator to establish ownership of bonds in defendant's possession under a claimed gift from decedent. The trial court upheld the gift but we reversed although the evidence seemed to be stronger than it is here. This from the opinion (page 642 of 230 Iowa, page 812 of 298 N.W.) is applicable here:
One circumstance the cited case holds was inconsistent with a completed gift is that the alleged donor was to have the interest from the bonds during his life. Here William testified, as stated, that at the time he says the note was given him he was told his parents were to be paid interest as long as they lived.
III. We have frequently pointed out that evidence of a claimed oral gift from a person deceased, or similar transaction, challenges the scrutiny and skepticism of the court and imposes upon it the duty to subject the evidence to every fair test which tends to weaken its credibility. Sufficient support for this is found in Connell v. Hays, 255 Iowa 261, 122 N.W.2d 341, 346, and citations.
IV. Defendants assign five errors for reversal just as if the action were at law and not reviewable de novo. Four of them relate to applicability of the dead man statute. The other challenges the trial court's conclusion that defendants' possession of the note, under the circumstances, raised no presumption of payment. We think the claimed errors except one which relates to the dead man statute are directly ruled by the terms of the statute and our prior decisions contrary to defendants' contentions. Also that the one error referred to is without merit.
So far as pertinent, Code section 622.4, I.C.A., provides: 'No party to any action or proceeding, nor any person interested in the event thereof, * * * and no husband or wife of any said party or person, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, * * * against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person * * *.'
Defendants contend the statute has no application to actions brought by a decedent's administrator but applies only to actions brought against such representative. We have held to the contrary. The statute applies whether the action is brought by or against the protected party provided the incompetent witness testifies against such party to a personal transaction or communication between the witness and a person deceased. The effect of our decisions is that a witness called by a defendant testifies against plaintiff no less than one called by a plaintiff testifies against defendant. 'The mouth of the decedent is just as effectually closed where the executor is plaintiff as where he is defendant.' Leasman v. Nicholson, Executor, 59 Iowa 259, 263-264, 12 N.W. 270, 13 N.W. 289, 290; Chapman v. Chapman, 132 Iowa 5, 6, 109 N.W. 300; Bosserman v. Watson, supra, 230 Iowa 627, 638-639, 298 N.W. 804, 810; Nelson v. Nelson, 245 Iowa 1225, 1230, 65 N.W.2d 154, 156; Luse v. Grenko, 251 Iowa 211, 217, 100 N.W.2d 170, 174. See also Cherokee State Bank v. Lawrey, 203 Iowa 20, 22, 212 N.W. 359.
V. Defendants contend that by offering the note and mortgate in evidence and offering testimony of witnesses other than plaintiff, mainly to the execution and delivery of the instruments, plaintiff opened the door for defendants to testify to the claimed gift from decedent.
Making of the note and mortgage was admitted in defendants' answer. They were offered and received in evidence without testimonial identification and without objection. Plaintiff was never examined as a witness in his own behalf. Code section 622.5, I.C.A., which defendants argue made them competent witnesses to the alleged gift from the deceased parents, therefore has no application here. The section reads, in pertinent part: 'This prohibition shall not extend to any transaction or communication as to which any such * * * administrator * * * shall be examined on his own...
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