In re Conner's Estate

• Decision Date: 05 April 1949
• Docket Number: 47213.
• Parties: In re CONNER'S ESTATE.
• Court: Iowa Supreme Court

36 N.W.2d 833

240 Iowa 479

In re CONNER'S ESTATE.

No. 47213.

Supreme Court of Iowa

April 5, 1949

[Copyrighted Material Omitted]

Bailey C. Webber, of Ottumwa, and C. J. Lambert, of Sigourney, for appellants, John Herman, Elvin E. Herman and Ernest A. Herman.

W H. Hamilton, of Sigourney, for appellee C. G. Updegraff, as Executor of Zanette Conner Estate.

Jones & White, of Ottumwa, for appellee Ellis C. Conner.

OLIVER Justice.

A rehearing having been granted, the former opinion reported in 33 N.W.2d 866 is withdrawn and this opinion substituted therefor.

Jacob Conner and his wife, testatrix Zanette Conner, for many years lived on a farm in Keokuk County, Iowa. Their only child, Martha was born in 1886. In 1912 Martha married appellant, John Herman. Martha died testate in 1944. Her estate was willed to her said husband. Appellants, Elvin and Ernest Herman, are their two adult sons. Appellee, Ellis C. Conner, contends he was Martha's illegitimate son, born in 1903.

The joint will of Zanette Conner and her husband Jacob, made in 1925, recited their property was in fact owned by them jointly, regardless of their legal title. It gave the survivor a life estate in all the joint property, and subject thereto, certain real estate to their daughter, Martha, and other real estate to Ellis Conner; the residue to be converted into cash and divided equally between Martha and Ellis. It was probated first after Jacob's death in 1936 and again after Zanette's death in 1946. Ellis Conner was listed as a grandson in the records of both estates. Appellee Updegraff, the lawyer who drew the will, was executor of the estate of Jacob, closed in 1938. He is now executor of Zanette's estate.

Shortly prior to Jacob's death Zanette's sister, Iowa Keister, died, leaving Zanette about $8,000. The first order (1937) admitting to probate the joint will (to which Martha Herman and Ellis Conner and their spouses made written consent) adjudged the assets Zanette would receive from the Iowa Keister estate, were Zanette's separate and individual property and not a part of Jacob's estate.

The personal property of Jacob's estate consisted of farm machinery, equipment and animals, inventoried at $1,500. The final report of appellee executor for Zanette's estate, recites that Zanette, from her individual and separate estate (received from Iowa Keister), paid the debts of Jacob's estate amounting to three or four thousand dollars, with the agreement she would reimburse herself from the sale of the personalty remaining when she ceased operating the farm, and that she did so.

The report recites also that the effective date of the testamentary disposition of Zanette's separate and individual property (from Iowa Keister estate) as distinguished from the jointly owned property, was the date the admission of her will to probate, that Martha Herman and Ellis Conner acquired no interest therein prior to her death, and that Martha having predeceased testatrix, Martha's children and heirs at law, Ellis C. Conner, Ernest A. Herman and Elvin E. Herman, inherit Martha's half of this property, in equal shares of one third each. See section 633.16, Code of Iowa 1946, I.C.A. Another recitation in the report is that a $4,000 certificate of deposit payable to Zanette Conner or Ellis Conner, survivor, and held by the executor, was the property of Ellis Conner by virtue of an inter vivos gift from Zanette.

John Herman, Elvin Herman, and Ernest Herman filed extensive objections to the final report and have appealed from the order overruling such objections and approving the report. Ellis Conner and C. G. Updegraff, executor of Zanette's estate, are the appellees. The foregoing abridged statement is limited to such parts of the final report as are involved in the appeal. There are three separate basic questions:

1. Whether Ellis Conner was Martha's son.

2. Whether there was a valid gift inter vivos from Zanette to Ellis of the $4,000 certificate of deposit.

3. Whether Zanette's estate should account to the remaindermen of her husband's estate for the proceeds of the sale of the personal property.

The story of Ellis Conner's lineage is set out in an affidavit, Exhibit A, made by Zanette Conner in January, 1945. It recites Martha Conner, born in 1886, was the only child of Zanette and Jacob. In 1902 Martha had an affair with a man, became pregnant, and in February, 1903 gave birth to Ellis Conner at a hospital in Chicago to which she had been removed by her parents; Dr. Strawbridge, of Sigourney, made the arrangements and he and Zanette were present at the birth of Ellis; Zanette brought the infant Ellis and Martha from Chicago to the Conners' farm home where they all continued to reside as a family until Martha's marriage to John Herman; Ellis was treated by Zanette and Jacob as though he were their own child, was recognized as such, and was named a beneficiary in their joint will; Zanette was the last living person with personal knowledge of the foregoing facts and made the affidavit that the true and correct parentage of Ellis, place and date of his birth might be known to all concerned. At the same time Zanette executed another affidavit, Exhibit B, upon the form of Iowa State Health Department, Division of Vital Statistics, setting out the birth of Ellis at Chicago to Martha out of wedlock, etc.

Elmer H. Mertz, a close friend of the Conners, testified that in 1930 and several times thereafter, Zanette told him of Ellis' birth, etc., the story repeated by the witness being substantially that set out in Exhibit A. She told him also of all their efforts to shroud Ellis' birth in secrecy and that she wanted the papers (Exhibits A and B) filed of record after her death.

A witness who lived in the Conner home testified that before Martha and Zanette went to Chicago the family said Martha had a 'white swelling'; that when neighbors would come to the Conner home Martha would get into bed with her clothes on and would arise and work after their departure. Several witnesses who knew Martha expressed the opinion she was then pregnant. There was evidence that later 'there was common talk in the neighborhood that the child belonged to Martha.' Witnesses testified Ellis once introduced Martha as his mother and that she acknowledged the introduction.

I. Appellants complain that evidence of the oral and written statements of Zanette Conner relative to the lineage of Ellis Conner was admitted over their objections. Declarations with respect to pedigree and family history by a relative or one in such a position that he would be likely to know the facts and who is deceased or unavailable when the declarations are offered in evidence, constitute a recognized exception to the hearsay rule. 16 I.L.R. 92; In re Estate of Frey, 207 Iowa 1229, 224 N.W. 597; Alston v. Alston, 114 Iowa 29, 86 N.W. 55; In re Estate of Clark, 228 Iowa 75, 97, 98, 290 N.W. 13; In re Estate of Felle, 237 Iowa 1082, 23 N.W.2d 910; In re Estate of Corbin, 235 Iowa 654, 17 N.W.2d 417.

In re Estate of Carroll, 149 Iowa 617, 620, 128 N.W. 929, 930, states:

'* * *. As a general rule such information or statements concerning which a witness may testify must have antedated the litigation and the controversy, so that they could not have been induced thereby. They must be ante litem motam.'

When Ellis was a young man he was told he was illegitimate by his fiancee's parents. He became very excited and demanded of Jacob and Zanette that he be told his pedigree, and he was told. Appellants argue this was a controversy and therefore the declarations of Zanette were not ante litem motam. This contention is without merit. Some of the declarations were made twenty years later and obviously could not have been induced thereby. Nor was this a controversy of the nature referred to in the rule. Certainly there was no controversy over Zanette's estate until after her death. It is fair to assume that if she had any thought her estate might be involved in litigation over this question she would have avoided this by definitely providing for the disposition of her separate property as she desired.

Another contention is that Exhibits A and B were inadmissible because they were ex parte affidavits. The admission of these was proper, not because they were affidavits, but because they were written declarations. Their competency is governed by the same rule as Zanette's oral declarations. In re Estate of Frey, supra, 207 Iowa 1229, 224 N.W. 597 ; 20 Am.Jur. 411, Evidence, § 468.

Appellants contend also that declarations are incompetent unless made to someone in the family. That is not the rule and the authorities do not so hold.

The evidence of general talk in the neighborhood that Ellis was Martha's child was admissible.

In re Estate of Wise, 206 Iowa 939, 940, 221 N.W. 567, 568, states:

'* * * It does appear, however, that it was the common and general report in the community that the decedent was the father of the appellee. While it is true that such neighborhood belief or expression of opinion, or what is sometimes and quite properly denominated 'village gossip,' is not controlling in a case of this kind, we have held that evidence in regard thereto is admissible.'

Among other decisions are Robertson v. Campbell, 168 Iowa 47, 55, 56, 147 N.W. 301; Trier v. Singmaster, 184 Iowa 307, 319, 167 N.W. 538; In re Estate of Clark, supra, 228 Iowa 75, 97, 290 N.W. 13. No error appears here.

Nor was it error to admit, over objections, the opinion testimony of lay witnesses qualified by their experience and observation, that Martha was pregnant. 20 Am.Jur. 719, 720, Evidence, § 859; Yahn v. City of Ottumwa, 60 Iowa 429, 432, 15 N.W. 257; Shaw v. Duro, 234 Iowa 778, 790, 14 N.W.2d 241.

Appellants assign error to the...