In re House's Estate
| Citation | 18 N.W.2d 500,145 Neb. 866 |
| Decision Date | 20 April 1945 |
| Docket Number | 31812. |
| Parties | In re HOUSE'S ESTATE. LEFLANG v. SMITH ADM'R. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court.
1. An interested party is competent, if otherwise qualified, to testify to the genuineness of the signature or handwriting of a deceased person notwithstanding section 25-1202, R.S.1943 since such testimony involves a matter of opinion and not a personal transaction or conversation between the witness and decedent.
2. When a claim is filed against the estate of a deceased person upon a promissory note it is not error for the trial court to permit the interested party over proper objections to testify that an endorsement on the back thereof is in his own handwriting.
3. Section 25-1141, R.S.1943, operates to preserve error in the admission of evidence only when appropriate objection is interposed and there is an erroneous ruling thereon by the court.
4. When a person, who is precluded by the provisions of section 25-1202, R.S.1943, from testifying against the representative of a deceased person, is permitted, without objection, to testify to a conversation or transaction had with such deceased person, it is a waiver of the benefit of the statute.
5. When objection to the admission of evidence as to transactions or conversations with deceased has been properly made by the representative of a deceased person and erroneously overruled, the party making such objection does not waive his rights under the statute by cross-examining the witness on the same matters or offering direct evidence thereon to meet that erroneously admitted.
6. On the other hand, if either on cross-examination or by direct examination the representative goes beyond the scope of the inquiry to which his objection was properly made and as to which it should have been sustained, and introduces evidence of other matters in regard to the original transaction or conversation which is not admissible under the provisions of the statute, then the representative thereby waives the benefit of the statute and any erroneous rulings of the court.
7. Matters of opinion and arguments of jurors in the jury room are considered as inhering in the verdict, and not such matters of misconduct as can be proved by the jurors themselves.
8. Warnick v. Warnick, 107 Neb. 747, 187 N.W. 51, and Banking House of F. Folda v. Higgins, 122 Neb. 279, 240 N.W. 300 distinguished.
Frank M. Johnson, of Lexington, for appellant.
Cook & Cook, of Lexington, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.
This appeal is from allowance of the claim of Anna Cole Leflang, hereinafter called plaintiff, against the estate of Merton E. House, deceased, of which W. Rollin Smith, objector, referred to herein as defendant, is the representative as administrator with the will annexed. The claim was based upon a promissory note for $4,000 with interest at 6 per cent, dated January 26, 1932, due January 26, 1936, upon which no payment had been made unless, as plaintiff alleges, the sum of $200 was voluntarily paid on December 23, 1941, the endorsement of which appears as a credit upon the instrument. From allowance of the claim in the county court defendant appealed to the district court interposing objections that the note was without consideration and void; also that the alleged payment was not in fact ever made, hence the claim was barred by the statute of limitations.
Trial of the issues to a jury in the district court resulted in a verdict and judgment for plaintiff. Defendant's motion for new trial was overruled and he appeals to this court. In the first four assignments of error, which will hereinafter appear verbatim, it is contended that the trial court, over appropriate objections, erroneously permitted plaintiff to testify to certain transactions or conversations with deceased, in violation of section 25-1202, R.S.1943. Other assignments are that the trial court erred in admitting the note in evidence, in overruling defendant's motion for directed verdict at the conclusion of plaintiff's case, and in the giving and refusal of certain instructions. It is also contended that the verdict is contrary to law and the evidence, and not a fair and deliberate verdict awarded by twelve competent and unprejudiced jurors. The record discloses that none of these assignments of error can prevail.
Prefacing decision of the first four assignments of error, attention is directed to section 25-1202, R.S.1943, which provides in part: 'No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, unless * * * such representative shall have introduced a witness who shall have testified in regard to such transaction or conversation, in which case the person having such direct legal interest may be examined in regard to the facts testified to by such deceased person or such witness, but shall not be permitted to further testify in regard to such transaction or conversation.' The first two assignments of error relating thereto will be disposed of by decision that they were not transactions or conversations with the deceased, the two latter by finding that defendant by his own acts opened the door and waived the benefit of the statute and any erroneous ruling of the court.
The first assignment is that, 'The court erred in permitting the claimant to identify the signature of M. E. House to Exhibit 1 (B. of Ex., Qs. 20-22).' In this connection, it should be noted that plaintiff testified in her own behalf by deposition taken by her attorney in Omaha, Nebraska, whereat counsel for defendant cross-examined at length. The deposition in toto was offered in evidence by plaintiff without objection generally but subject as a matter of course to the right of the parties to except to questions and answers during the trial on the ground of incompetency or irrelevancy as provided by section 25-1264, R.S.1943. Bentley v. Estate of Bentley, 72 Neb. 803, 101 N.W. 976. Without objection plaintiff was permitted to testify in her direct evidence that Dr. Merton E. House, deceased, formerly a dentist at Lexington, Nebraska, was her sister's husband whom she had known and treated as a brother for half a century, she having been in his home and he in hers on numerous occasions, particularly throughout the years after the death of her husband and the death of her sister, the wife of deceased, during which period plaintiff had business transactions with the deceased.
The following evidence was then received over objection that it was 'in violation of the Statute providing for the exclusion of all transactions and conversations with deceased.' No objection was made as to foundation. Q. 20. The following questions were then asked and answered without objection. Q. 21. Q. 22. However, as provided by section 25-1141, R.S.1943, the former objection having been made and overruled by the court it was unnecessary to repeat the same objection to the latter testimony of the same nature by the same witness in order to save errors if any. See Zediker v. State, 114 Neb. 292, 207 N.W. 168; Triplett v. Western Public Service Co., 129 Neb. 799, 263 N.W. 229.
Whether the evidence above recited was erroneously admitted depends upon whether it was a transaction or conversation with deceased. In this connection, it was held in Clark v. Fleischmann, 87 Neb. 609, 127 N.W. 914, that, 'Exceptions to the statutory rule that 'every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases' (Code, sec. 328) (now sec. 25-1201, Rev.St.1943), should not be extended by construction beyond the import of the terms used by the Legislature.' As was said in Harnett v. Holdrege, 5 Neb.Unof. 114, 97 N.W. 443, 448, reaffirmed in 73 Neb. 570, 103 N.W. 277, 119 Am.St.Rep. 905, 'Under our present statute, to require the evidence of an interested party to be excluded, it must appear that the testimony relates to something of a personal nature passing between the witness and the deceased.' In Re Estate of Baker, 144 Neb. 797, 14 N.W.2d 585, 590, we approved the general rule that, 'the adverse party may testify to any fact which is not either a transaction, a communication or a statement of the deceased or incompetent person, even if it is material to the case, unless the statute expressly makes him incompetent as to facts equally within the knowledge of the deceased or incompetent person.' The statute of this state does not so provide. See Sharmer v. McIntosh, 43 Neb. 509, 61 N.W. 727. This court held in Hlavaty v. Blair, 101 Neb. 414, 163 N.W. 330, that, 'A transaction or conversation within the meaning of section 7894, Rev.St.1913 (now sec. 25-1202, R.S.1943), is an action participated in by witness and decedent and to which, if alive, decedent could testify of his personal knowledge.' See, also, Nelson v. Janssen, 144 Neb. 811, 14 N.W.2d 662.
In discussing the question of the competency of a witness to prove the genuineness of the signature of deceased in cases similar to the one at bar, it is said in 3 Jones on Evidence Civil Cases, 4th Ed., sec. 786, p. 1441: ...
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