James v. Fairall, 29473

CourtUnited States State Supreme Court of Iowa
Writing for the CourtPRESTON, J.
Citation148 N.W. 1029,168 Iowa 427
PartiesNANCY W. JAMES, Appellant, v. MAE L. FAIRALL et al., Appellees
Docket Number29473
Decision Date06 October 1914

148 N.W. 1029

168 Iowa 427

NANCY W. JAMES, Appellant,

MAE L. FAIRALL et al., Appellees

No. 29473

Supreme Court of Iowa, Des Moines

October 6, 1914

[148 N.W. 1030]


Appeal from Johnson District Court.--HON. JOHN F. TALBOTT, Judge.

AN action at law to set aside probate of will of Ellen J. Fairall, deceased, on the ground of fraud and undue influence. Trial to a jury. Verdict and judgment for defendants. Plaintiff appeals.


McDonald & Olsen, for appellant.

O. A. Byington and Wade, Dutcher & Davis, for appellees.

PRESTON, J. LADD, C. J., EVANS, and WEAVER, JJ., concur.

OPINION [148 N.W. 1031]

[168 Iowa 429] PRESTON, J.

The case has been here before. James v. Fairall, 154 Iowa 253, 134 N.W. 608. A general statement of the case may be there found. Some of the points relied upon on this appeal are disposed of by the opinion on the former appeal. The writer is of opinion that the evidence was not sufficient to take the case to the jury, but that question and some others are foreclosed by the determination of the first appeal.

The first and principal error relied upon is in the refusal of the trial court to admit the testimony of George W. Fairall as to a conversation with the testatrix regarding the making of her will. George W. Fairall is a son of the testatrix, a devisee under the will, and an heir in the absence of a will. He was made a party defendant upon the bringing of the action. He and a brother, W. W. Fairall, filed an answer separate from the other defendants, in which they aver that they have no interest in the controversy and have no objection to the will being set aside. After the reversal in the supreme court, and when the case [168 Iowa 430] came on for trial below, the plaintiff dismissed as to George W. He was placed upon the witness stand and asked to detail conversations with the testatrix. Objection of incompetency was made to the witness, when it was suggested to the court that such an answer had been filed, and that the case had been dismissed as to George, and that an entry had been made dismissing him. Counsel for appellant contend that, having disclaimed interest in the action, and having been dismissed as a party, he was rendered competent to testify to personal transactions with the testatrix. In order to show that the witness had no interest in the action, counsel sought to introduce evidence as to alleged advancements made to said witness by the testatrix, in order to show that the advancements would exceed his interest in the estate, provided the will was set aside and he inherited as an heir. Objection was made to the question in regard to this matter and sustained by the court. The objection was, among others, that it called for a conclusion of the witness. We think it was so and that the objection was good on that ground. The question was:

Q. "Mr. Fairall, you may tell the jury and court whether advancements that had been made to you, if any had been made, would be in excess of your share of your mother's estate, in the absence of a will?"

The objection was, because it asked for a personal communication or transaction and a legal conclusion and was not competent.

An answer to this question would involve the question as to the value of his mother's estate, also the value of advancements made to him. There was no foundation whatever laid to show that the witness was competent to speak of values, and the question clearly called for the conclusion of the witness. Furthermore, at the time this witness was on the stand there was no offer to show the value of the estate by this witness, or that he knew the value, or the value of the advancements.

[168 Iowa 431] The will recites that she had conveyed to said George W. Fairall and his children certain land of the value of about $ 1,800.00 and become obligated for him to the amount of about $ 1,000.00; she directed that the real estate should be deemed an advancement; that the executor ascertain the amount of her obligation on behalf of her said son, and that said obligation be deemed an advancement, and to be so considered in the distribution of the estate, and provided that such advancements should be deducted from the devise to said George W.

It seems that at the trial, counsel for plaintiff relied on an alleged statement by an attorney for defendants in his opening statement to the jury, that George had received advancements in excess of his share. The record does not so show. The opening statement was not taken down, nor did the court make any finding of such alleged fact. There is simply the assertion of plaintiff's counsel that such was the fact.

The contention in this court is, that because the case had been dismissed, George was no longer a party; that he was not interested because he had received advancements in excess of his share under the will, or under the law, and that he would be estopped, after filing such answer, from claiming any interest in the estate upon distribution. Under the terms of the will, George would be the gainer if the will was set aside, and he undoubtedly so believed when he filed his answer. The circumstances that George filed such an answer, and that thereafter the plaintiff dismissed as to him and then called him as a witness, indicate collusion between plaintiff and said George, and the trial court may have so considered it. If this is the fact, then the dismissal by plaintiff would not, under the authorities, have the effect of making his evidence competent. We do not understand the theory of the trial court in permitting a dismissal as to said defendant George, and the reason therefor does not appear in the record. Ordinarily, all the heirs should be made parties to a will contest, and in this case the appellees objected to the case proceeding [168 Iowa 432] until George was again brought in so that further litigation and contest might be avoided. This was denied, but the defendants have not appealed.

The will was admitted to probate June 1, 1907, and the dismissal as to George was had on November 29, 1912, or more than five years after the will was probated, and it is possible that the theory of the trial court was, that the five years allowed for setting aside a will having elapsed, George could not thereafter contest.

It should be said that, after this witness left the stand, and after plaintiff had [148 N.W. 1032] rested her case, there was evidence introduced by the defendants tending to show the value of the estate and the amount of claims and encumbrances. But the witness, George W., was not thereafter recalled to the stand and again asked as to the advancements received by him. It is true that he was called in rebuttal and, as soon as he was called, the defendant objected to his testifying because he had violated a rule of the court in excluding witnesses from the room. This would be error, probably, if the appellant was in position to raise the question. We are of opinion that, under such circumstances, the witness should be allowed to testify, and the jury to judge the weight of his testimony in view of the fact that he had heard other witnesses. Perhaps the witness could be punished for contempt if it could be shown that he had intentionally or wilfully violated the order, but the question as to the refusal to permit his testimony on that ground has not been argued. The trouble at this point is, that the witness was simply called in rebuttal, and no question was asked, no offer to prove was made, and it is not now claimed, even if it could be now done, that they proposed to ask the same question that they had asked in chief. The proposition is, whether the ruling of the trial court was correct at the time it was made. If so, there would be no error, even though afterwards evidence was [168 Iowa 433] introduced from which it might be determined that he had no interest in the estate. O'Mara v. Jensma, 143 Iowa 297, 121 N.W. 518.

As to the alleged estoppel, that must be pleaded. There is no such plea in this case, and probably could not be as to this matter.

If the will should be set aside, and there should be sufficient property so that George W. would be entitled to something as heir, after deducting advancements to him, if any, it may be that, under such circumstances, after filing an answer disclaiming any interest in the controversy, or estate, he would be estopped from claiming any interest therein upon distribution, but it would be necessary for the other heirs to plead an estoppel, and we do not now know that such a plea would be tendered; so that, to hold the evidence of this witness competent on that ground, we must assume now that such an estoppel would be pleaded and sustained. It is said by counsel for appellees that there was no such issue in this case as to the advancements, and that, to sustain the position of counsel for appellant, it would be necessary to enter upon the trial of the issue of advancements to said heir and of the value of the estate; that in order to determine the competency of George W. Fairall as a witness, it would have been necessary to have received evidence as to the value of the estate of Ellen J. Fairall and to receive evidence as to the various moneys and property given to George W. during her lifetime, and the...

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