McDonald v. Young

• Decision Date: 14 December 1899
• Parties: MCDONALD ET AL. v. YOUNG ET AL.
• Court: Iowa Supreme Court

109 Iowa 704

81 N.W. 155

MCDONALD ET AL.

v.YOUNG ET AL.

Supreme Court of Iowa.

Dec. 14, 1899.

Appeal from district court, Wayne county; W. H. Tedford, Judge.

Action in partition. Defendant W. W. Young claimed sole title to a part of the real estate involved. From a decree in his favor, plaintiffs appeal. Affirmed.Miles & Steele, for appellants.

Freeland & Evans, for appellees.

WATERMAN, J.

The parties plaintiffs and defendants are children and heirs at law of one Jonathan Young, who died seised of the real estate involved, being nearly 400 acres. Jonathan Young left a widow surviving him. She has since died, and the controversy here is over the question whether she took a homestead interest in the real estate of her deceased husband, or, at her death, was entitled to her distributive share. Before stating the facts, it will be well to dispose of some objections to evidence. Several questions asked of W. W. Young were objected to as being incompetent, immaterial, and irrelevant. It is argued that the questions called for personal transactions with his deceased mother, and the testimony given in response thereto should have been excluded, under section 3639, Code 1873. The objection, in the form made here, is not sufficient to raise the point presented in argument. The objection of incompetency, without more, goes to the evidence, and not to the witness. The testimony given was competent. It is the witness who is made incompetent to speak, under section 3639, and the objection, to be good, must be made to the witness. Burdick v. Raymond, 107 Iowa, 228, 77 N. W. 833.

Proceeding, now, to the facts of the case, we find that, after Jonathan Young's death, his widow remained in the house on the farm, which had been her home for many years. With her were her two sons, A. W. Young, the plaintiff, and W. W. Young, the defendant. After a time A. W. Young married, and brought his wife to the house, where they remained some two years. W. W. Young then married, bringing his wife home. The other son and wife left about this time, and took up their residence elsewhere. For some five years thereafter the widow, with W. W. Young and his wife, continued to occupy the dwelling. During the first three years of the occupancy of the mother and the two sons the land was farmed in common, for the purpose of paying the indebtedness of the father's estate. After this the mother was paid and accepted rent for the one-third of the real estate, and she paid taxes on her distributive share. The testimony goes to show that the mother, although continuing to occupy the old home, gave up the charge of it to her two sons at first, and later to William W., she living with them. Shortly before her death Mrs. Young had a lawyer prepare her will. She told him she owned a one-third interest in the real estate; that she wished to leave it to William (the defendant), subject to certain legacies. A will was drawn accordingly, and duly executed. After the mother's death, the will was probated, and under this instrument William claims the one-third of the real estate. The other parties insist that their mother had only a homestead right, and that nothing passed to William by the will.

Briefly summing up the facts, we find...