Kroh v. Heins

• Decision Date: 02 June 1896
• Docket Number: 6519
• Citation: 67 N.W. 771,48 Neb. 691
• Parties: ALICE KROH ET AL., APPELLANTS, v. MARY J. HEINS ET AL., APPELLEES
• Court: Nebraska Supreme Court

67 N.W. 771

48 Neb. 691

ALICE KROH ET AL., APPELLANTS, v. MARY J. HEINS ET AL., APPELLEES

No. 6519

Supreme Court of Nebraska

June 2, 1896

APPEAL from the district court of Douglas county. Heard below before FERGUSON, J.

REVERSED AND REMANDED.

B. G Burbank and George F. Gillmore, for appellants.

E. R Duffie, B. N. Robertson, and James F. Morton, contra.

OPINION

NORVAL, J.

The defendant, James F. Morton, on the 7th day of December, 1885 received from one Adolph Von Heilen $ 1,500, to be loaned for the latter for a period not exceeding five years, at not less than ten per cent interest per annum, the interest to be paid semi-annually. By the power of attorney executed by Von Heilen the notes and securities taken for the loans were to remain in Morton's hands, he guarantying the prompt payment of the principal and interest as the same became due. Subsequently, on June 28, 1886, $ 500 more was received by Morton to loan under the same terms, and the entire $ 2,000 was put at interest by him. Receipts for said sums were given by Morton to Von Heilen. On the 13th day of March, 1887, Von Heilen died intestate, leaving him surviving, a brother and four sisters, the plaintiffs herein, as his only heirs at law and next of kin, to-wit: C. Edward Von Heilen, Alice Kroh, Emma C. Thompson, Mary E. Brown, and Anna A. Heins. The defendants, William F. Heins, Mary J. Heins, and Alice Heins, are the minor children of said Anna A. Heins. The plaintiffs claim the notes and securities taken for the said moneys placed in Morton's hands as heirs of their deceased brother, and the said minors claim the same as a gift from the said Adolph in December, previous to his death. This is an equitable action to determine the rights of the plaintiffs to said moneys and securities. From a decree in favor of the defendants, the plaintiffs, excepting said Anna A. Heins, appeal.

The defendant Morton in his answer, among other things, sets up that he has no moneys in his hands belonging to the estate of said Adolph Von Heilen; that the latter in his lifetime appointed his sister, said Anna A. Heins, trustee to receive the moneys at that time held by Morton and belonging to said deceased, for the use and benefit of the three youngest children of said trustee, the minor defendants, and at the same time said Adolph Von Heilen made over and assigned to said trustee all his right or title in or to said moneys, and authorized and directed Morton to pay the same to said trustee, and that he has paid over to her all of said moneys, with interest thereon, for the purpose stated, and no part of the same is now in his hands. The answer further sets up a counterclaim against the estate of the said deceased in the sum of $ 738 for services rendered as attorney and agent, and for cash advanced for said estate. This answer contained other averments which need not be here stated. All allegations of the answer are denied by the reply.

The evidence to establish the alleged gift of the money to the said minors rests alone upon the testimony of the defendant Morton and the said Anna A. Heins, which was admitted over the objections of the plaintiffs, they claiming that the said Morton and Mrs. Heins were disqualified from testifying against the personal representatives of said deceased. If they are right upon this proposition the decree cannot stand. Mrs. Heins testified, in effect, that she visited Adolph Von Heilen at his home in St. Louis in 1886, and that while there he informed her of his intention to make a gift of the moneys in Morton's hands to her three youngest children, and that afterwards, in December of the same year, she received a letter from Von Heilen through the mails inclosing the receipts given by Morton for the $ 2,000. This letter having been lost, she was permitted to testify as to its contents, as follows: "He wrote stating and sending the receipts with his letter, 'and take this letter and show it to Mr. Morton and turn these receipts over to him, and get his receipt in full for all the money,' stating that he was sick, and he says, 'in case of my death without making a will, it is my express wish that the money should go to your three youngest children.'" She further testified that she showed this letter to Mr. Morton, turned over to him the said receipts received from her brother, and that Mr. Morton thereupon receipted to her for the money. Mr. Morton also testified to the contents of the said letter to Mrs. Heins, to the surrendering to him of the receipts given the deceased, and to receipting to her for the money which Von Heilen had left with him to invest. The witness further testified that he received through the post-office three or four letters from Von Heilen, and stated the substance of their contents after foundation had been laid for that class of testimony. The first letter was dated in December, 1886, and to the question, "State what it contained," Mr. Morton answered: "Well, sir, it was about the same as Mrs. Heins', and informing me to turn the money over to her children and give her a receipt for it, and also to send the interest, which was then due or about due, to him until further instructed. That is the very language of the letter. There was six months' interest due, which I sent him." Mr. Morton also testified that the deceased in the same letter stated "that he wished, in case of anything happening to him without making a will, that I should see that the Heins children would get his money." The contents of the other missing letters received from the deceased, as given by Mr. Morton, being of the same import, need not be here set out.

Counsel for plaintiffs argue that there is not sufficient competent evidence in the record to establish a gift from Von Heilen to the minor defendants, for the reason that both Mr. Morton and Anna A. Heins were incompetent to testify against the plaintiffs as to transactions which they had with Von Heilen in his lifetime. The question raised is whether either of these witnesses is disqualified from testifying to conversations had with the deceased, and to the contents of the letters already mentioned, under the provisions of section 329 of the Code of Civil Procedure, which reads as follows: "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 the evidence of the deceased person shall have been taken and read in evidence by the adverse party in regard to such transaction or conversation, or 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." This section has been frequently before this court for consideration, and it has been uniformly held that a party who has a direct legal interest in the result of an action is precluded from testifying against the representative of a deceased person as to any transaction or conversation between the witness and such deceased person, except in the instances specifically enumerated in the statute. (Wamsley v. Crook, 3 Neb. 344; Ransom v. Schmela, 13 Neb. 73, 12 N.W. 926; Magenau v. Bell, 13 Neb. 247; Housel v. Cremer, 13 Neb. 298, 14 N.W. 398; Rakes v. Brown, 34 Neb. 304, 51 N.W. 848; Parrish v. McNeal, 36 Neb. 727, 55 N.W. 222; Mead v. Weaver, 42 Neb. 149, 60 N.W. 385; Sharmer v. Johnson, 43 Neb. 509.) We are entirely satisfied with the interpretation placed upon the section quoted. The language of its provisions is too plain to admit of any other construction. Our statute does not, like those of some of the states, prohibit parties from becoming witnesses against the representatives of a deceased person, but it merely excludes persons who have a direct legal interest in the outcome of the suit from testifying to transactions or conversations with the deceased, and not then in case the evidence of the deceased in regard to the same has been already read in evidence, or such representative shall have called a witness who testified to the same conversation or transaction. Applying the foregoing to the case at bar, does the record disclose that either Morton or Mrs. Heins testified to any transaction or conversation had with Von Heilen? As already stated, they each testified not only to the reception from the deceased of certain letters, but gave their contents, the loss of the letters having first been established. Mrs. Heins also repeated a conversation she had with Von Heilen. Clearly the testifying to said conversation was a violation of the letter and spirit of the law. The question arises whether the letters were "transactions" within the meaning and intent of the statute. The provisions of section 329 relate to all transactions between the witness and the deceased person, written as well as verbal. Obviously the legislature has not confined the operation of the statute to oral transactions merely, and we have no right to do so. The testimony of Mr. Morton and Mrs. Heins relate to "transactions" between each and the deceased.

The court in Van Vechten v. Van Vechten, 65 Hun 215, 20 N.Y.S. 140, in construing the statute of New York, almost identical with our own, say: "The language and intent of that section embraces every variety of affairs; all means of communication, oral, written, signs, or gestures, direct or indirect, positive or negative, or evidence of facts, the plain inference from which is a...