In re Stratman's Estate
| Decision Date | 13 January 1942 |
| Docket Number | 45686. |
| Citation | 1 N.W.2d 636,231 Iowa 480 |
| Parties | In re STRATMAN'S ESTATE. TAMMEN v. ELMAN. |
| Court | Iowa Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Thompson & Weible, of Forest City, for appellant.
Harrington & Lowe, of Algona, and Mitchell & Loth, of Fort Dodge, for appellee.
Claimant Clara Tammen, is a widow who, at the time of trial, was nearly 81 years old. Decedent, Frederick Stratman, was her brother. The claim alleged that claimant's father died testate in 1895, leaving certain real estate in Hardin county and a town property in Buffalo Center, Iowa, which were devised in equal shares to his five sons and daughters, subject to the life estate of their mother, who died in 1911; that the real estate in Hardin county was sold to one Hoskins for $25,000 on May 17, 1912, and the Buffalo Center property was conveyed to claimant for $900 on September 12, 1913; that decedent transacted for claimant all of the business in connection with the aforesaid sales and received her share of the consideration from the sale of her interest in the Hardin county land; that the balance due claimant, which decedent agreed to pay her and which claimant never received, is $4,000 with interest from May 17, 1913.
An amendment to the claim alleged that on January 19, 1938, decedent admitted in writing the obligation upon which claim was made. A copy of the admission, attached to the amendment, consists of an assessment roll for 1938 signed and sworn to by decedent, containing the following:
The answer to the claim contained a denial, a plea of the statute of limitations, and certain other defenses regarding which the evidence is silent.
At the conclusion of claimant's evidence, the executrix moved for a directed verdict because there was no sufficient evidence of the claim and because it was barred by the statute of limitations. The motion was sustained and judgment entered thereon. Claimant has appealed and asks a reversal, not only because of the alleged error in directing the verdict, but also because of the exclusion of certain evidence.
I. Appellant was asked: "Other than the house in Buffalo Center, did you ever receive your share of the money coming from the land in Hardin county?" Appellee objected to the question as calling for a conclusion and because the witness was incompetent under the dead man statute, section 11257, Code 1939. The sustaining of the objection constitutes the first error assigned by appellant. We think appellant was incompetent under the statute to answer the question in that form.
The claim alleged, in substance, that decedent received appellant's share of the money coming from the Hardin county land and never paid the same to appellant. While appellant could have testified to what if any money she received from the purchaser, she was an incompetent witness to deny the receipt of her share from decedent. Lusby v. Wing, 207 Iowa 1287, 1289, 224 N.W. 554. We have frequently recognized that a witness testifies to a personal transaction no less when he denies it than when he affirms it. In re Will of Winslow, 146 Iowa 67, 71, 124 N.W. 895, Ann.Cas.1912B, 663; In re Will of Renne, 194 Iowa 938, 949, 189 N.W. 776. Under the circumstances here, appellant's denial that she ever received her share would be a denial that decedent paid her, which the statute forbids.
II. Following the above ruling, appellant was permitted to say that she knew who received her share of the money coming from the Hardin county land. To the next question, "Who did receive your share?" the court sustained appellee's objection that it was a conclusion, no proper foundation laid, and that a personal transaction was called for. If permitted, the answer would have been, "Fred Stratman." Appellant assigns error. She argues that it does not appear from the question or otherwise that the testimony related to a personal transaction with decedent. This may be conceded. Nevertheless, we think the ruling was not error. Even though appellant had stated that she knew who received her share, there was no showing of the source or extent of her knowledge. The testimony partook at least somewhat of a conclusion or, at any rate, of what has been referred to as a composite or collective fact. The inquiry was not limited to what the witness saw or heard. Under such circumstances, the court had discretion either to require that the witness' source of knowledge be more fully shown before allowing her testimony, or to permit the testimony and leave the basis of her knowledge to be brought out on cross-examination. 20 Am.Jur., p. 643, sec. 771. The court chose the former method. No abuse of that discretion appears.
III. Thomas Tammen, appellant's son, testified as a witness for his mother: To the following question, "Who did handle it?" the witness answered, "Fred Stratman." On appellee's motion, this answer was stricken as a conclusion and without proper foundation.
The propriety of this ruling is more doubtful. This witness was not incompetent under the dead man statute. The court might well have permitted the answer to stand. It probably would be difficult to detail the primary facts leading to the ultimate fact (somewhat of a conclusion, to be sure) that decedent "handled the business." See 22 C.J., p. 531, sec. 613. Somewhat similar questions have been held proper in Gault v. Sickles, 85 Iowa 266, 270, 52 N.W. 206; Coldren v. Le Gore, 118 Iowa 212, 215, 91 N.W. 1066; Hcusinkveld v. St. Paul Fire & Marine Ins. Co., 106 Iowa 229, 233, 235, 76 N.W. 696; Moyers v. Fogarty, 140 Iowa 701, 712, 119 N.W. 159. However, the question was of the kind discussed in Division II hereof and for the reasons there stated, we do not hold this ruling constitutes reversible error.
IV. Appellant offered in evidence her own assessment rolls for the years 1929 to 1933, which showed moneys and credits due her of $4,000. To this offer, the court sustained appellee's objection on the ground that the rolls were self-serving statements. Appellant argues that the statements really constituted admissions against interest because they subjected her to liability for taxes. No authority is cited in support of this assignment of error. We are inclined to hold the ruling was proper. The evidence was hearsay.
V. It is next urged that there was sufficient evidence to carry the case to the jury. This requires a statement of the evidence. Appellant's father died in 1895, leaving a will which was duly probated, devising the Hardin county land and the Buffalo Center property to his five sons and daughters in equal shares, subject to the life estate of his wife. The widow died in 1911. On April 5, 1913, the five heirs deeded the Hardin county land to one Hoskins for a consideration of $25,000, $6,000 of which was paid in cash. The son, Claus, received full payment of $5,000 for his share out of the cash payment of $6,000. The remainder of the purchase price was evidenced by a note and mortgage for $19,000 payable to appellant, decedent, and the two remaining heirs, in four equal shares. This mortgage was released about March 1, 1918, and a new mortgage for the same amount was executed to the four heirs. The 1918 mortgage was in turn released about March 1, 1921, and new mortgages totaling $19,000 were executed to the four owners. These latest mortgages were released on February 6, 1924. The Buffalo Center property was deeded to appellant for $900 by the other four heirs on September 12, 1913.
C. W. Cadd, a banker then living at Buffalo Center, who was very well acquainted with decedent and knew the whole family, testified that when the Hardin county land was sold he was requested by decedent, Fred Stratman, to go to Hardin county and close the transaction; that he did as requested and came back and reported to Fred what had taken place. Cadd testified:
One Lohrbach, a nephew of both decedent and appellant, testified that about 1918 he heard decedent talk to the witness' father with reference to a mortgage on some land.
Thomas Tammen, a son of appellant, in 1932 and 1933 was employed by a Joint Stock Land Bank in Chicago in the sale of farms. This witness described in detail the circumstances of a conversation with decedent in 1932 or 1933 in which decedent said that he was threatened with foreclosure on one of his farms by the mortgagee, Lincoln Joint Stock Land Bank; that he, decedent, asked the witness if the Lincoln bank would be apt to "jump on" another unincumbered farm which decedent owned. The witness then testified: ...
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