Hogan v. Sullivan

• Citation: 87 N.W. 447,114 Iowa 456
• Parties: HOGAN v. SULLIVAN (O'DOWD ET AL., INTERVENERS).
• Decision Date: 04 October 1901
• Court: United States State Supreme Court of Iowa

114 Iowa 456

87 N.W. 447

HOGAN

v.SULLIVAN (O'DOWD ET AL., INTERVENERS).

Supreme Court of Iowa.

Oct. 4, 1901.

Appeal from district court, Clinton county; P. B. Wolfe, Judge.

Action to recover $2,000 as belonging to the estate of John Collins, deceased. Intervention by Mary Sullivan, as next friend of Joseph Sullivan, claiming $1,000 of the fund for which the action is brought against defendant, and by P. O'Dowd, claiming in his own right and as trustee for others another portion of said fund. Defendant raised no issue with the interveners, but claimed in his own right $120. Plaintiff took issue with interveners as to their right to portions of the fund claimed. Trial to the court. Judgment was rendered in favor of the two interveners as to their respective claims, and in favor of plaintiff against defendant for the balance of the fund not covered by these claims. Plaintiff appeals. Affirmed.J. M. Dower and Baker & Ball, for appellant.

Ellis & Ellis, for defendant.

R. B. Wolfe, for interveners.

McCLAIN, J.

Evidence, much of which was received subject to objection, tended to show that plaintiff's intestate, John Collins, about two years before his death, took defendant to a bank, and deposited $2,000, having the certificate made payable to defendant, at the time explaining his action by saying that the doctors had told him that there was danger of his death, and that he wanted to have the money put in defendant's name so that he could draw it out. Collins was a widower, without children, and living with defendant and his wife; the latter being an adopted daughter. About two years afterwards, and two weeks before his death, Collins, who was then suffering with the malady of which he afterwards died, gave directions to defendant with regard to the disposal of the money which he had previously deposited to defendant's credit, causing defendant to make a brief memorandum of the beneficiaries as follows: “Orphans' Home, Davenport, $500; Educate Priests for Indian Missions, $200; Propagation of Faith, $100; Father O'Dowd's Assistant, $20; Father Donovan, $50; Father O'Dowd, $40; Mrs. J. Cavanaugh, $100; Joe Sullivan, $1,000.” This memorandum was read over to Collins, but the paper was not signed by him. It was introduced by defendant as a part of his testimony. Defendant further testified that all of these donations were to be paid over to P. O'Dowd, who was named in the memorandum as Father O'Dowd, except the last two. There was also testimony tending to identify more specifically the beneficiaries named in the memorandum.

1. Various objections were interposed by counsel for appellant to the testimony offered in behalf of the defendant, and also to that in behalf of interveners. The trial judge received the evidence, however, subject to objection, and at its conclusion, in a written opinion, announced rulings to the effect that defendant's testimony in his own behalf was incompetent, because it related to personal communications between deceased and himself, in violation of Code, § 4604, but that defendant's testimony as to the same conversations and transactions was competent in behalf of the interveners. Other objections to evidence were not ruled upon, and it does not appear whether the other evidence objected to was considered by the court or not. If the testimony of defendant with regard to these communications and transactions was admissible in behalf of the interveners, then there was sufficient evidence to sustain the judgment of the court; and we may presume that, if the other evidence was properly subject to the objections which were made, it was not considered, and no error in that respect was committed. Inasmuch as judgment was rendered against defendant for the balance of the fund to which interveners were found not to be entitled, and as defendant made no claims adverse to interveners, it may be conceded that defendant, as far as his testimony in behalf of interveners was concerned, was not an interested witness under the provisions of Code, § 4604. But the statute excludes in such cases the testimony of a party to the suit as against the administrator as well as that of a person interested, and counsel for appellant insists that defendant was therefore disqualified to testify to personal transactions and communications with deceased, even in interveners' behalf. We cannot agree with this view. The relief asked by the interveners was against the plaintiff as administrator, and no relief was sought against defendant. The interventions were wholly distinct from the action in which plaintiff sought in behalf of the estate to recover money from defendant. The statutory provision is to be applied with a view to the object for which it was passed. Watson v. Russell, 18 Iowa, 79. The situation is different from that involved in Burton v. Baldwin, 61 Iowa, 283, 16 N. W. 110, and Williams v. Barrett, 52 Iowa, 637, 3 N. W. 690. In those cases it was held that one defendant to a suit was incompetent to testify in behalf of other defendants, although not interested generally with such other defendants; but the cases each involved only one action, while in this case we find that the action against defendant was wholly distinct from the actions by the interveners against plaintiff. The court properly overruled the objection to defendant's testimony when offered in behalf of the interveners.

2. The direction to Collins to pay sums of money specified to the persons named was valid, if at all, by way of gift causa mortis. It is contended that there was not such delivery as to make the gift effectual. It is not necessary to cite cases to the effect that delivery is essential. See, however, Stokes v. Sprague (Iowa) 81 N. W. 195, where the question is fully discussed. There is some conflict in the cases as to whether postponement of time of enjoyment until after donor's death will render the gift invalid. This court has held that such express postponement is immaterial, provided the gift is absolute. Schollmier v. Schoendelen, 78 Iowa, 426, 43 N. W. 282, 16 Am. St. Rep. 455. And see Grymes v. Hone, ...