Myers v. Manlove

• Decision Date: 24 April 1913
• Docket Number: No. 7,930.,7,930.
• Citation: 53 Ind.App. 327,101 N.E. 661
• Parties: MYERS et al. v. MANLOVE.
• Court: Indiana Appellate Court

53 Ind.App. 327

101 N.E. 661

MYERS et al.

v.MANLOVE.

No. 7,930.

Appellate Court of Indiana, Division No. 1.

April 24, 1913.

Appeal from Circuit Court, Fayette County; George La Gray, Judge.

Action by Mary L. Myers and others against Emery Manlove. Judgment for defendant, and plaintiffs appeal. Affirmed.D. W. McKee, H. L. Frost, and R. N. Elliott, all of Connersville, for appellants. Conner, Conner & Chrisman, of Connersville, for appellee.

FELT, P. J.

This was a suit by appellants against appellee on a promissory note, a copy of which is as follows: “Connersville, Ind. March 15, 1902. Value received: One day after date, I promise to pay to Calvin Myers or order Fifteen Hundred Dollars ($1500) with interest at four per cent per annum after date. Emery Manlove.” The complaint is in the usual form of a suit on a note, and also alleges that the payee of said note died intestate on February 17, 1906, leaving appellants, Mary L. Myers, his widow, and Oliver P. Myers, his son, as his only heirs at law; that all the debts of Calvin Myers, deceased, had been paid in full, and there was no administration on his estate. The appellee filed answer in two paragraphs-one setting up want of consideration, and the other alleging no consideration for the note except the sum of $400. A reply of general denial to the answers was filed. Trial by jury resulted in a verdict for appellee. Appellants' motion for a new trial was overruled, judgment for appellee was rendered on the verdict, and this appeal taken.

Appellant Mary L. Myers and appellee are brother and sister, children of Margaret Manlove, deceased, who died March 24, 1902. Appellee claims that appellant Mary L. Myers obtained possession of a large amount of cash which had belonged to their mother; that she knew he had knowledge of that fact; that said Mary L. was seeking to keep said funds from coming to the knowledge and possession of the legal representative of her mother's estate, and to make distribution thereof herself; that the money for which said note was given was paid to him as a part of his distributive share of such funds; that instead of executing a receipt therefor as he intended to do, at the suggestion and request of said Mary L., he executed to her husband the note in suit as evidence of such payment, and dated it March 15, 1902, though the transaction took place on April 1st, after the death of their mother. Appellee offered himself as a witness in his own behalf, and the court held that, under the statute, he was incompetent to testify to anything relating to the transaction which occurred prior to the death of the payee of the note. The court thereupon in the exercise of its discretion under section 526, Burns 1908 St. required appellee to testify in the case. Appellants claim that this was an abuse of the discretion given the trial court by the statute; that his testimony was the only evidence tending to explain or impeach the consideration of the note, or to show that it was in fact executed at a date other than that shown upon the instrument.

[1] The appellants and appellee refer to section 522, Burns 1908 St., as controlling the question of appellee's competency as a witness. This section covers suits “by or against heirs or devisees, hounded on a contract with or demand against the ancestor, to obtain title to or possession of property, real or personal, of, or in the right of such ancestor, or to affect the same in any manner.” This is a suit to obtain a money judgment on a promissory note, and is not included in the subject-matter of section 522. Harley R. Snyder v. Sol Frank et al., 101 N. E. 684, and cases cited.

[2] The suit here is by the widow and only son of the deceased payee of the note, who are prosecuting a suit that in contemplation of the statute and in accordance with the usual course of procedure would be brought by the administrator or executor Calvin Myers, deceased. If the suit had been brought by such legal representatives, the competency of appellee as a witness would then clearly have been controlled by section 521, Burns 1908 St. The subject-matterof this suit is clearly covered by section 521, and, though the suit is by heirs instead of legal representatives of the deceased, it comes within the spirit of the section, which we hold controls the question of appellee's competency as a witness. Clift v. Shockley, 77 Ind. 297-299;Taylor v. Duesterberg, 109 Ind. 165-171, 9 N. E. 907;Durham v. Shannon, 116 Ind. 403-405, 19 N. E. 190, 9 Am. St. Rep. 860;Sloan v. Sloan, 21 Ind. App. 315-318, 52 N. E. 413.

[3] By virtue of the statute, appellee was incompetent to testify to matters occurring in the lifetime of the deceased. Being incompetent, the further question remains as to whether the trial court abused its discretion in allowing him to testify. Some questions are discussed as to whether the court required him to testify or only permitted him as a willing witness in his own behalf. It appears that the court and counsel on both sides practically agreed that he was an incompetent witness to the transactions named in the statute, and that the court only admitted his testimony on the theory that he had a right to do so in the exercise of the legal discretion conferred by section 526 of the statute.

[4] It is evident that in practically all cases the party whose testimony is incompetent under the statute is willing to be “required” to testify, and we are not inclined to narrow the application to unwilling witnesses, though there are some expressions in the decided cases indicating that such is the meaning of the statute. Where it appears, as it does here, that the court held the witness incompetent to testify as to matters occurring in the lifetime of the decedent, and then received his testimony as permissible in the discretion of the court, the question of the proper or improper exercise of such discretionary power is presented. Appellants offered evidence to show that the date of the note showed the true date of the transaction, and that the money obtained by appellee on the note belonged to the payee, Calvin Myers.

Independent of the testimony given by appellee after the court permitted him to testify, there was evidence tending to show that Calvin Myers never listed the note for taxation, and that neither of appellants ever listed it for taxation until after this suit was instituted. That Margaret Manlove went to the home of appellee about two weeks prior to her death and soon after took sick and died without returning home; that she was very ill for 10 days or more before her death, and appellant Mary L. claimed to have been with her most of the time of her illness; also, that Margeret Manlove was a woman of means, 84 years of age at the time of her death; that she had lived alone on her farm of about 300 acres for about 9 years after her husband's death; that she kept money about her house, and was close and...