In re Estate of O'Brien
| Decision Date | 30 September 1927 |
| Docket Number | 4832 |
| Citation | 262 P. 152,44 Idaho 729 |
| Parties | In the Matter of the Estate of JOHN J. O'BRIEN, Deceased. v. MARY KIERNAN, Respondent ELLEN DEMPSEY and JOHN BRIEN, Appellants, |
| Court | Idaho Supreme Court |
HEIRSHIP-COURTS-JURISDICTION OF DISTRICT COURT-JUDGMENT-APPLICATION FOR CONTINUANCE-APPEAL AND ERROR-ADMISSION OF EVIDENCE - HEARSAY TESTIMONY - REVERSAL OF JUDGMENT NOT WARRANTED-TRIAL-INSTRUCTIONS.
1. District court on appeal from probate court in probate matters, governed by C. S., sec. 7176, prescribing the steps to be taken by appellant, and by section 7182, providing for transmittal of certified copy of record by clerk of probate court to clerk of district court, held to have jurisdiction on appeal being properly perfected by appellant, though the clerk failed to do his duty.
2. Judgment of district court on appeal from probate, making determination of the question of heirship contrary to that of the probate court, and remanding it to probate court for execution in accordance therewith, held in proper form.
3. There was no abuse of discretion in denying application for continuance till receipt of depositions, which were being taken; the evidence being merely cumulative, and a showing of due diligence required by C. S., sec. 6840, not being made.
4. Any error in admitting will is, under C. S., sec. 6728, not ground for reversal; it not appearing to have been harmful to one party or to have aided the other.
5. Refusal to admit, on plaintiff's offer, affidavits referred to by defendant on cross-examination of plaintiff's witnesses, by question asking merely where they obtained the information forming the basis of the affidavits, without making reference to their contents cannot be held error on the theory that the jury may have gained the impression that the witnesses may have made contradictory statements in the affidavits; the reverse being the more probable, as, defendant having objected to their admission, the jury would be more apt to think defendant wanted to keep them from the record because they would have been beneficial to plaintiffs and harmful to defendant.
6. Plaintiffs not denying that defendant was an heir of intestate, but merely claiming that they also were heirs testimony of the administrator as to a conversation with a third person, in which he gained information of defendant was not prejudicial.
7. Any error in admitting conversation does not warrant reversal of judgment for defendant, where it does not seem possible that it could have had any influence in disproving plaintiff's claim of relationship, the only matter in dispute.
8. It being clearly shown that defendant was illiterate and unable to write, instruction given on her behalf, that it is not enough that an illiterate person is shown to have had an instrument read to her, but it must further be shown that she understood the instrument's contents before such writing claimed to have been signed by her is binding on her, held not error.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. W. F. McNaughton, Judge.
Action to determine heirship. Judgment for respondent. Affirmed.
Judgment affirmed, with costs awarded to respondent. Petition for rehearing denied.
James F. Ailshie and Edward H. Berg, for Appellants.
The probate court is a court of exclusive original jurisdiction in matters of probate, and the district court can only acquire appellate jurisdiction in these matters by and through the prescribed appellate procedure for the purpose of trying anew the issue tried in the probate court, upon the same pleadings or papers and upon the same issues made in the court below. (In re McVay Estate (on rehearing), 14 Idaho 64, 93 P. 31; Estate of Christensen, 15 Idaho 692, 99 P. 829; Fraser v. Davis, 29 Idaho 70, 156 P. 913, 158 P. 233; Kline v. Shoup, 38 Idaho 202, 480, 220 P. 45.)
If the pleadings and files in a case tried in the probate court in a probate matter are not certified up to the district court on appeal, no appellate jurisdiction is acquired and there is nothing before the court to try and the appeal should be dismissed. (C. S., sec. 7182; In the Matter of Paige, 12 Idaho 410, 86 P. 273.)
A judgment rendered on an appeal to the district court in probate matters can only affirm, reverse or modify the judgment appealed from and should be certified back to the probate court for execution in accordance therewith. (Fraser v. Davis, supra; In re McVay Estate, supra; Collins v. Lindsay, 33 Idaho 230, 191 P. 357.)
The discretion vested in a trial court in granting or denying an application for a continuance or a new trial must not be exercised arbitrarily, but in a judicial manner. (Herron v. Jury, 1 Idaho 164; Storer v. Heitfeld, 17 Idaho 113, 105 P. 55.)
A new trial on the ground of newly discovered evidence should be granted if the new evidence is such as to render a different verdict reasonably probable upon a retrial. (State v. Lumpkin, 31 Idaho 175, 169 P. 939; McAllister v. Bardsley, 37 Idaho 220, 215 P. 852.)
What purports to be a certified copy of a will admitted to probate in another state, bearing an attestation by the clerk and the seal of the court, is inadmissible as evidence in the courts of this state in the absence of a certificate of the chief judge or presiding magistrate that the attestation is in due form. (C. S., sec. 7949.)
After a witness has been cross-examined respecting an affidavit made by him, and not referred to in the direct examination, the party who called him has a right, on redirect examination, to introduce the same in evidence even though it would have been inadmissible in the first instance. (Idaho Placer Min. Co. v. Green, 14 Idaho 249, 93 P. 954; Douglas v. Douglas, 4 Idaho 293, 38 P. 934; 1 Greenleaf on Evidence, 14th ed., pp. 567, 568; 14 Ency. of Evid., pp. 622-624, 629; Wilkerson v. Eilers, 114 Mo. 245, 21 S.W. 514.)
Reputation of certain facts of family history generally accepted in the neighborhood where the family has lived for generations may be received in evidence. (3 Wigmore on Evidence, p. 351.)
Respondent cannot testify to conversations between herself and a third party not had in the presence of the appellants. ( Whitman v. McComas, 11 Idaho 564, 83 P. 604; Hilbert v. Spokane International R. R. Co., 20 Idaho 54, 116 P. 1116.)
The burden of proving a state of facts which will overcome the force of the jurat or certificate is upon the party assailing it, whose unsupported testimony is insufficient. (Bruce v. Frame, 39 Idaho 29, 225 P. 1024, and cases cited; Clegg v. Eustace, 40 Idaho 651, 237 P. 438; First Nat. Bank v. Commercial Union Assur. Co., 40 Idaho 236, 232 P. 899.)
One acknowledging the execution of an instrument to which his name is attached or written adopts such signature as his own. (Clegg v. Eustace, supra; First National Bank of Hailey v. Glenn, 10 Idaho 244, 109 Am. St. 204, 77 P. 623.)
Ezra R. Whitla and W. B. McFarland, for Respondent.
No certificate or record on motion to dismiss from probate court was filed so it cannot be considered. (Dudacek v. Vaught, 28 Idaho 442, 154 P. 995; Biwer v. Van Dorn, 32 Idaho 213, 179 P. 953; Talbot v. Collins, 33 Idaho 169, 191 P. 354; Spencer v. John, 33 Idaho 717, 197 P. 827; Muncey v. Security Ins. Co., 42 Idaho 782, 247 P. 785; Kootenai County v. Hope Lumber Co., 13 Idaho 262, 89 P. 1054.)
Motion for continuance addressed to discretion of trial court. ( State v. Miles, 43 Idaho 46, 248 P. 442; Meservy v. Idaho Irr. Co., 37 Idaho 227, 217 P. 595; Berlin Machine Works v. Dehlbom Lumber Co., 32 Idaho 566, 186 P. 513; De Puy v. Peebles, 24 Idaho 550, 135 P. 264.)
Diligence to discover and produce evidence must be shown on motion for new trial. (Hall v. Jensen, 14 Idaho 165, 93 P. 962; Montgomery v. Gray, 26 Idaho 585, 144 P. 646; Stolz v. Scott, 28 Idaho 417, 154 P. 982; Amonson v. Stone, 30 Idaho 656; Haydon v. Branson, 33 Idaho 368, 195 P. 545; Caravelis v. Cacavas, 38 Idaho 123, 220 P. 110.)
Depositions of appellants offered not admissible as appellants testify from neighborhood gossip. (In re Heaton Estate, 135 Cal. 385, 67 P. 321; Estate of Hurlbert, 68 Vt. 366, 35 A. 77, 35 L. R. A. 794; Stein v. Bowman, 38 U.S. 209, 10 L.Ed. 129.) Where witness learns facts from others he must give names of parties from whom obtained before testimony is admissible. (Nunn v. Mayes, 9 Tex. Civ. App. 366, 30 S.W. 479.)
Where illiterate party denies writing, incumbent upon opposite party to show that illiterate person understood and assented to the writing.
Certified copy of will of Ann O'Brien not objected to on ground it was not properly certified so question cannot be raised here. (3 C. J., pp. 756-759, pars. 639-641; Falk v. Gast Lithograph & E. Co., 54 F. 890, 4 C. C. A. 648; Long-Bell Lumber Co. v. Martin, 11 Okla. 192, 66 P. 328; Wells Fargo Co. v. Davis, 105 N.Y. 670, 12 N.E. 42.)
John J O'Brien died intestate at Coeur d'Alene July 5, 1921, leaving an estate of approximately $ 25,000. Claims of heirship were filed in the probate court by Mary Kiernan, John Brien and Ellen Dempsey (nee Brien.) The probate court decided that they were first cousins of deceased and sole heirs at law and entitled to share equally in the estate and decreed that the estate be so distributed. An appeal was taken to the district court and the jury decided that Mary Kiernan was the sole heir and entitled to all of the estate and this...
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