Johnson v. Shaver (In re Golder's Estate)

• Decision Date: 10 July 1916
• Docket Number: No. 3925.,3925.
• Citation: 37 S.D. 397,158 N.W. 734
• Parties: In re GOLDER'S ESTATE. JOHNSON et al. v. SHAVER et al.
• Court: South Dakota Supreme Court

37 S.D. 397

158 N.W. 734

In re GOLDER'S ESTATE.JOHNSON et al.

v.SHAVER et al.

No. 3925.

Supreme Court of South Dakota.

July 10, 1916.

Appeal from Circuit Court, Tripp County; William Williamson, Judge.

Will contest by Ellen Johnson and Marguerite Golder against Jean Shaver and Theodore Smith. The instrument was admitted to probate in the county court, and contestants appealed to the circuit court. From a judgment there admitting the will to probate, contestants appeal. Reversed and remanded.Dolezal & Johnson, of Fremont, Neb., F. C. O'Hallaren, of Winner, and E. O. Patterson, of Dallas, for appellants.

Doherty & Talbott, of Winner, and French & Orvis, of Yankton, for respondents.

WHITING, J.

Appeal from a judgment of the circuit court admitting a will to probate. The sole issue presented is whether decedent was, at the time of executing the will, possessed of testamentary capacity.

[1] Upon this question, the protestants, heirs at law of deceased, sought to introduce their own testimony as well as that of two physicians who attended testator at about the time of the execution of the will. The testimony of protestants was excluded upon the ground that it was inadmissible under section 486, C. C. P., that of the physicians on the ground that it was inadmissible under section 538, C. C. P.

Section 486, C. C. P., so far as material to our present discussion, reads as follows:

“No person offered as a witness in any action or special proceeding in any court *** shall be excluded or excused by reason of such person's interest in the event of the action or special proceeding; or because such person is a party thereto; *** except as hereinafter provided:

(1) ***

(2) In civil actions or proceedings by or against executors, administrators, heirs at law, or next of kin in which judgment may be rendered or order entered for or against them, neither party nor his assignor nor any person who has or ever had any interest in the subject of the action adverse to the other party, or to his testatoror intestate shall be allowed to testify against such other party as to any transaction whatever with or statement by the testator or intestate, unless called to testify thereto by the opposite party.”

Protestants sought to be allowed to testify as to the physical appearance, actions, and statements of the testator at about the time of the execution of the will. Such testimony was offered on the ground that it tended to show testator's mental capacity, and would establish facts upon which expert evidence might be based. It is too apparent to need discussion that the trial court erred in excluding the testimony of proponents as to the physical appearance and acts of the testator. By no possible stretch can the words “transaction” or “statement” be held to include physical appearance and acts. The primary purpose in the enactment of this statute was to remove the common-law disability resulting from a witness' interest in the outcome of an action or his relationship to a party thereto. The enacting section is sweeping in its terms and standing alone would remove all disabilities. The proviso introduces certain exceptions.

“Such proviso should be construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms; and those who set up such exception must establish it as being within the words, as well as within the reason thereof.” Witte v. Koeppen, 11 S. D. 598, 79 N. W. 831, 74 Am. St. Rep. 826.

“This statute should be strictly construed so as not to be held to apply to any person or testimony not clearly within its provisions.” Chapman v. Greene, 27 S. D. 178, 130 N. W. 30;Ekern v. Erickson, 157 N. W. 1062.

It is contended by appellants that the provisions of section 486 have no application to will contests, but only to actions wherein the estate is virtually a party-where the result of granting the relief prayed for would be to increase or decrease such estate. They also contend that the facts sought to be shown were what are commonly spoken of as “verbal” acts, and that evidence thereof is competent even though it come from the lips of an heir or next of kin. Inasmuch as practically all the facts sought to be shown were the “verbal” acts of deceased, we do not find it necessary or advisable to pass upon the first contention. Where a witness is rendered incompetent under section 486, such incompetency only extends to, and forbids his testifying for the purpose of, proving a “transaction *** with or statement by the testator or intestate,” as the basis of a claim for or against some party claiming under deceased; but evidence of statements made by deceased, when they amount to “verbal” acts, may be received upon the question of the testamentary capacity of deceased. Of course, when permitting such evidence to go before a jury, it should be fully instructed as to the purpose for which it is to be received-that it is not a question of the truthfulness of the statement that they are to determine, but whether the statement was made and, if made, its probative force upon the question of testamentary capacity. When we consider the evident purpose of the enactment of said section 486, it is patent that it was not to exclude evidence of this kind either in any action or in any other proceeding. As was said in Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92:

“In response to the issue raised as to the mental capacity of deceased at the time of the execution of the contract, after proof of the execution of the contract by deceased had been made, and after it was shown by defendants that deceased had lived for some time prior to the execution of the contract at the home of defendants, defendant *** was asked, ‘What can you say, from your association with her, your observation of her conduct, and your conversation with her, as to her mental condition?’ To this question an objection was interposed, and the answer thereto excluded. Defendant *** was asked, ‘During the time of your mother's last visit, what can you say as to her mental condition, from your association with her, your conversation with her, and her actions and conduct?’ The answer to this question was also excluded from the jury. In view of the issue raised by the pleadings, this evidence was material. An attempt is made to justify the ruling under that provision of the Code which rendered defendants incompetent to testify as to any transaction or conversation had personally with the deceased. We do not think this position tenable. These questions were not propounded for the purpose of placing before the jury any transaction with or conversation of the deceased, but for the purpose of apprising the jury of the mental condition of deceased at and...