Worthington v. Diffenbach
| Decision Date | 01 July 1918 |
| Docket Number | 31440 |
| Citation | 168 N.W. 257,184 Iowa 577 |
| Parties | HESTER A. WORTHINGTON, Appellee, v. ETHEL DIFFENBACH et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 30, 1918.
Appeal from Marion District Court.--LORIN N. HAYS, Judge.
JAMES M. WORTHINGTON made deed to his son R. B. Worthington, in which the grant to the son is "during his natural lifetime, with remainder to the heirs of his body." The covenants of warranty made by the grantor are made with R. B Worthington and "the heirs of his body." The trial court held that the appellee is the widow of R. B Worthington, and has dower right in the lands conveyed by this deed, because of the Rule in Shelley's Case. One Core made deed to R. B. Worthington, conveying to him "during his natural lifetime, with remainder to the heirs of his body." When this deed was made, the Rule in Shelley's Case had been abrogated in this state by legislative enactment. But the trial court held that taking by R. B. Worthington of a deed making conveyance to him during his natural lifetime, with remainder to the heirs of his body, was an attempt to place the title in the heirs of R. B. Worthington, in fraud of the dower rights of his alleged widow. The defendants appeal.
Reversed.
Crozier & Welch, Fred W. Lehmann, Jr., and Brammer, Lehmann & Seevers, for appellants.
W. G. Vander Ploeg, for appellee.
I.
It is immaterial whether the Rule in Shelley controls the one deed, and whether the second deed effects a fraud upon dower rights, unless there be competent and sufficient evidence that appellee is the widow of R. B. Worthington. She has no interest in any land involved in the action, unless she be such widow. Was the evidence of marriage incompetent?
So far as it is material here, Section 4604 of the Code provides that no party to an action may, in certain actions, be a witness "in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased." She is a party to one of these actions. See Burton v. Baldwin, 61 Iowa 283. She was permitted to testify that she was married to R. B. Worthington, was not divorced from him, and remained his wife until he died. It has been held that the statute prohibits proving an express agreement for compensation. Herring v. Herring, 94 Iowa 56, at 59, 62 N.W. 666; Cowan v. Musgrave, 73 Iowa 384, 35 N.W. 496; Sauer v. Nehls, 121 Iowa 184, at 186, 96 N.W. 759. To the same effect is Stevens v. Witter, 88 Iowa 636, 55 N.W. 535; Boeck v. Milke, 141 Iowa 713, 118 N.W. 874; Sheldon v. Thornburg, 153 Iowa 622, 133 N.W. 1076; Ballinger v. Connable, 100 Iowa 121, at 130, 69 N.W. 438. Code Section 3139 provides that marriage is a civil contract. Gilman v. Sheets, 78 Iowa 499, at 501, 502, 43 N.W. 299, intimates that some methods of proving marriage might be incompetent under the statute. We think that, aside from this intimation in the Sheets case, the precise point has never been under consideration in this jurisdiction. But it is well settled elsewhere. In Hopkins v. Bowers, 111 N.C. 175 (16 S.E. 1), the court said:
"If marriage is not a personal transaction between the contracting parties, what is it?"
In that case, under a statute in effect like our own, it is held the trial court properly ruled out evidence sought to be elicited of one Ann Boothe, to show marriage between her and Nash Boothe, and said:
To the same effect is Berger v. Kirby, 105 Tex. 611 (153 S.W. 1130); Bowman v. Little, 101 Md. 273 (61 A. 223); Crane v. Stafford, 217 Ill. 21 (75 N.E. 424); and Weatherall v. Weatherall, 56 Wash. 344 (105 P. 822, 825). Under a statute provision that no person shall testify for himself concerning any transactions with a decedent in an action by a widow for the allotment of dower in her deceased husband's lands, she is incompetent to testify to the marriage. Bartee v. Edmunds, (Ky.) 96 S.W. 535. To the same effect are Imboden v. St. Louis U. T. Co., 111 Mo.App. 220 (86 S.W. 263); Matter of Brush, 25 A.D. 610 (49 N.Y.S. 803); Shorten v. Judd, 56 Kan. 43, 42 P. 337. One claiming a part of a decedent's estate, on the ground she was decedent's common-law wife, is incompetent to testify on that question. Schwingle v. Keifer, 105 Tex. 609 (153 S.W. 1132). In Edelstein v. Brown, 100 Tex. 403 (100 S.W. 129), in an action by the heirs of a woman against her reputed husband for their share of the community property, the court held that the alleged husband was incompetent to testify that he had never been married to decedent.
We hold this testimony was not permissible, under the statute.
II. But appellee urges that no proper objection was made, and appellant has so waived his right to complain. So far as cases cited by appellee go, we shall see that they create a waiver because the objection was late. They are not applicable where, as here, the claim is that objection was made too soon.
The record discloses that the first statement by appellee as a witness is that her name is Hester A. Worthington, and that immediately after this was said, defendant objected to the competency of the witness. It may be assumed the witness was not incompetent; and so assuming, it follows that, had the objection stopped at challenging her competency, it would not be a good objection. See Campbell v. Collins, 133 Iowa 152, 110 N.W. 435; Watson v. Riskamire, 45 Iowa 231. But the objection did not stop there. It continued with a statement that objected to any testimony from her "as to any personal transactions between her and James B. Worthington or R. B. Worthington, on the ground that she is a party to the action, which is against the heirs at law of R. B. Worthington, the witness being incompetent under the provisions of Section 4604 of the Code." Immediately after this objection was made, the appellee gave testimony in chief, which is before us in less than four lines of print; and it is that she was married to R. B. Worthington at Des Moines, Iowa, in October, 1899, that she was not divorced from him; that, from 1899 to the date of his death, she was his wife. The only other testimony is competent: to wit, that R. B. Worthington died about a year and a half ago. There are cases that might be strained into holding the objection was waived because it was not made before the witness was sworn. But these need no consideration, because it is the position of the appellee, not that this objection came too late, but that it came too soon, in that it was made before the witness gave any testimony now claimed to be objectionable, and was never again made during the taking of such testimony. We have held, time and again, that, when it is once made clear to the court that a certain line of testimony is objected to,--that it is not to go into the record with the consent of the objector,--it is not only needless, but improper, to inject into the record a repetition of these objections, every time evidence of the same general character is later offered. The waiver of objection by remaining silent is bottomed on reasoning that one may not complain of the reception of testimony where his conduct may have induced the court to believe that the reception was consented to. Now this objector told the court in advance that all testimony as to certain personal transactions was objected to. The testimony now assailed followed immediately. It can hardly be assumed that a failure to repeat the objection during the minute or two required to put in this testimony justified the court in believing that such testimony, if such personal transaction as had been objected to, was being put in with the consent of the appellant. It may be conceded that an examination following an advance objection might be so lengthy and complicated as to require, in the interest of justice, that such objection should be repeated. But that concession, for the reasons stated, cannot rule this case. If a statement that plaintiff was married to R. B. Worthington at Des Moines in October, 1899, was not divorced from him, and that she was his wife from 1899 to the date of his death, is a personal transaction, covered by the statute, it would be great straining to say that the court believed it should consider this testimony because it was not objected to. The cases, including those upon which appellee relies, support no such position. Burton v. Baldwin holds no more than that objection to a deposition, on the ground that the witness is incompetent, must be urged when he is sworn; but objections to his testimony may be urged on the trial. Other cases rule that, where the witness is incompetent,--say,...
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