Kemmerer's Estate, In re
| Decision Date | 01 May 1962 |
| Citation | 114 N.W.2d 803,16 Wis.2d 480 |
| Parties | In re ESTATE of Nellie E. KEMMERER, etc., Deceased. FIRST NATIONAL BANK OF JANESVILLE, Executor, Appellant, v. Goldie ECKE, Respondent. |
| Court | Wisconsin Supreme Court |
The judgment appealed from allowed the claim of Mrs. Goldie Ecke against the estate of her sister Nellie E. Kemmerer, a/k/a Helen Kemmerer, based upon a joint savings account. At the trial it was stipulated the money when deposited in the joint savings account belonged to the deceased, the present amount of the account was $3346.40, the deceased on July 28, 1958, executed a power of attorney to her son Kenneth Kemmerer, and on December 8, 1958, two days prior to the death of the deceased, the son withdrew the money from the Beloit Savings Bank and deposited it in the checking account of the deceased in the First National Bank of Janesville.
It is undisputed in the evidence that on July 6, 1955, the deceased, who was then eighty-one years of age and lived alone on a farm in Rock county, Wisconsin, went to the Beloit Savings Bank with her sister Mrs. Goldie Ecke, the claimant, and closed out an account in the name of the deceased and her late husband. A new account was opened in the name of Mrs. Helen Kemmerer or Mrs. Goldie Ecke. The possession of the passbook was given to Mrs. Ecke who retained it until after the death of the deceased. On July 29, 1957, Helen Kemmerer executed a will whereby she bequeathed $1,000 to Mrs. Ecke and another sister Violet Missner, and the remainder of her estate to her two sons Kenneth S. Kemmerer and Arthur R. Kemmerer equally. On July 28, 1958, Nellie E. Kemmerer executed a power of attorney to her son Kenneth who, on December 8, 1958, withdrew the money from the joint savings account under this power of attorney. Two days later Mrs. Kemmerer died and her will was probated. In this proceeding, Mrs. Goldie Ecke filed her claim for the amount of the joint savings account.
Geffs, Geffs, Block & Geffs, Janesville, for appellant.
Hansen, Eggers, Berres & Kelley, Beloit, for respondent.
On the trial the claimant introduced testimony of Bessie Sands, a domestic employee of the decedent, that she overheard a conversation between the deceased and Goldie Ecke to the effect the deceased wanted Goldie to have the money in the account if anything happened to her. Violet Missner testified she overheard a conversation between the deceased and her sister Goldie Ecke in which the deceased told Goldie she did not want the boys or their wives to have the bankbook because they would get everything else and she wanted Goldie to have the money. Goldie Ecke testified without objection concerning the opening of the joint account by the deceased with her, the giving of the passbook to her by the deceased and that the deceased had never asked for its return. The court refused to allow cross examination by the executor relating to demands made by the deceased upon Mrs. Ecke for the passbook, refused to admit direct testimony of Aruthr and Kenneth Kemmerer relating to the alleged demands made by their mother upon the claimant in their presence for the return of the passbook, and refused to allow Arthur Kemmerer to testify as to certain conversations with the deceased concerning the reason for establishing the joint account, on the ground the witnesses were incompetent to testify under sec. 325.16, Stats. 1 An offer of proof by the estate was made.
There is no question that Bessie Sands and Violet Missner were competent witnesses to testify to the conversations they overheard between the deceased and Mrs. Ecke. They were not interested parties and the conversations were not had by the witnesses personally with the deceased. Stuart v. Crowley (1928), 195 Wis. 47, 217 N.W. 719; Wollman v. Ruehle (1899), 104 Wis. 603, 80 N.W. 919. Such testimony did not waive the statute. However, Mrs. Ecke was incompetent to testify concerning the transaction with her deceased sister in establishing the account and the failure of the deceased to demand the passbook. This testimony was given without objection on the part of the executor and in support of Mrs. Ecke's claim the deceased made a gift to her of the joint account. It was error for the court not to allow the executor of the estate to cross examine Mrs. Ecke concerning her direct testimony dealing with the establishment of the account and also concerning the two occasions on which Mrs. Kemmerer is alleged to have had conversations with the claimant relating to the return of the passbook and the changing of the account. Having been allowed to testify to the transaction with the deceased, the claimant cannot now argue she is immune from cross examination as to that matter.
We appreciate the dead man's statute has been subject to various confusing interpretations and through the years has been severely criticized. The origin of the statute, its construction and the problem of waiver have been the subject of many excellent law review articles. See Currie, Transactions With Deceased Persons, 1948 Wis.Law Review 491; 43 Marquette Law Review 73; 1940 Wis.Law Review 407.
In Estate of Flierl (1937), 225 Wis. 493, 274 N.W. 422, the estate called as its witness a scrivener concerning the promissory notes involved in a transaction between the deceased and the claimant, and it was held the estate removed the incompetency of the claimant to testify to the whole transaction. Likewise in the Estate of Gilbert (1918), 167 Wis. 291, 166 N.W. 442, 167 N.W. 447, where the estate of the deceased put on as a witness an appraiser who testified to a transaction between the deceased and the claimant, it was held the door was open to put in testimony by the same witness to the entire transaction. In the case at bar, by not objecting to the incompetency of the witness for the opposite party, the estate did not foreclose itself from relying upon the opening of the door by the opposite party claimant. In such a situation, the party using the incompetent witness without objections does so as the peril of waiving the incompetency of witnesses for the other party and allowing in testimony concerning the transaction or conversation with the deceased.
The dead man's statute, which has existed in this state since 1858, is the last vestige of the common-law rule of the incompetency of an interested witness. This is but a minor reason, however, for the dead man's statute. The reason for the statute is the belief it is better public policy to protect the estate from possible fraudulent claims than to allow testimony of the living which cannot be counteracted or refuted by the testimony of the deceased. The purpose of the statute is not to foreclose the estate of the deceased from putting in testimony on an issue when testimony is otherwise available. There is no doubt that in many cases the statute prevents what might otherwise be a just result, as was pointed out in the Estate of Hounsell (1948), 252 Wis. 138, 31 N.W.2d 203.
Arthur and Kenneth Kemmerer were not disqualified from testifying to the demands made by the deceased on Mrs. Ecke for the return of the bankbook...
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Havlicek/Fleisher Enterprises, Inc. v. Bridgeman, 90-C-909.
...in the outcome of the action, he has no reason to conceal or lie about facts surrounding the transaction. See e.g. Estate of Kemmerer, 16 Wis.2d 480, 114 N.W.2d 803 (1962), in order to disqualify a witness from testifying under § 885.16, it is necessary "(1) That the witness has a certain t......
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