In Re Estate of Conner , 240 Iowa 479 ( 1948 )

I concur in all the majority opinion except Division IV which holds Mr. Updegraff, executor, incompetent as a witness because of the dead man statute, Code section 622.4. I do not think our prior decisions absolutely require this holding and if they be construed so to do I think they should be overruled.

The statute, so far as pertinent here, provides: "No party to any action or proceeding * * * shall be * * * a witness in regard to any personal transaction or communication between such witness and a person * * * deceased * * * against the * * * legatee [or] devisee * * * of such deceased person * * *." The majority holds the executor here was a "party" within the meaning of that language.

The opinion cites and quotes from Williams v. Barrett, 52 Iowa 637, 641, 3 N.W. 690, which case apparently marks the commencement of the rule of strict verbal construction of the statute resorted to here by the majority. In that case the witness as maker of the note sued on testified as to matters affecting the liability of his co-maker and the payee who had endorsed the note to plaintiff. He was not a party in any representative capacity but one of the principal defendants.

A similar situation existed in Clinton Sav. Bk. v. Underhill,115 Iowa 292, 88 N.W. 357. In fact no case is cited in which a witness was held to be disqualified merely because he was a party in a representative capacity. There is language in some which taken alone and literally would require the holding of such a witness to be incompetent. But an examination of the cited cases shows a situation in each which materially distinguishes it from the case here. Each is a case in which the witness, though without interest, had nevertheless such personal relationship to the issues as to make him individually a necessary or proper party. See e.g. Bohle v. Brooks, 225 Iowa 980, 983, 282 N.W. 351; Nugent v. Dittel, 213 Iowa 671, 239 N.W. 559; Frye v. Gullion,143 Iowa 719, 121 N.W. 563, 21 Ann. Cas. 285.

Here it is literally true the witness, Updegraff, is not only not interested, he is not a party. The party is Updegraff, executor, or the estate he represents.

The drawing of this distinction exactly conforms to the obvious and only possible purpose and intent of the statute. It is not an arbitrary, artificial, provision but one based on reason and justice. "The purpose is to prevent the surviving party from having the benefit of his own testimony where, by reason of the death of his adversary, his representative is deprived of the decedent's version of the transaction." 58 Am. Jur., Witnesses, section 215, page 147, and cases cited. See also 70 C.J., Witnesses, 206, 207.

Mr. Updegraff and decedent were not adversaries nor is Mr. Updegraff as an individual in any sense an adversary of either appellants or appellee. Nor is he, even as executor of the estate. There is here no claim against the estate. The controversy is between rival claimants of a part of the property. Mr. Updegraff, as executor, is in possession of the personal property of the estate and as such only is he a party. He, as a witness, is within neither the spirit nor the strict language of the statute.

I find no Iowa case that conclusively settles the question of Mr. Updegraff's competency as a witness. However, this court has held that one who was a proper party defendant but has ceased to be interested in the result because judgment has already been taken, or could under an existing stipulation be taken, against him was not incompetent as a witness in favor of the other defendants against the plaintiff administrator. Conger, Admr. v. Bean, 58 Iowa 321, 322, 12 N.W. 284; Clinton Sav. Bk. v. Underhill, supra. In the Conger case we said concerning the witness: "That he was technically a party cannot be denied. But after the filing of the stipulation * * * his rights were virtually concluded." See also Burton v. Baldwin,61 Iowa 283, 285, 16 N.W. 110, wherein it is implied that if the widow's dower had been admeasured before her deposition was taken she would have been a competent witness to conversations between herself and decedent in favor of the other defendants in a controversy between heirs in a partition suit in which plaintiff claimed certain conveyances to defendants were advancements and not gifts.

However, these cases serve only to show the term "party," as used in our statute, does not conclusively render every named party incompetent under the statute.

Because statutes of this character are not uniform, citations from other jurisdictions and textbooks must be made with discrimination. But we are not entirely without foreign assistance in solving our present problem. The Minnesota court confronted a similar one in Exsted v. Exsted, 202 Minn. 521, 527, 528, 279 N.W. 554, 559, 117 A.L.R. 599. The statute of that state was similar to our own. The court's opinion in that case thus stated its substance: "The testimony of any party to an action or of any person interested in its outcome as to the conversation of a deceased person relative to any matter in issue is inadmissible. 2 Mason's Minn. St. 1927, § 9817 [M.S.A. (1947) section 595.04]."

In that case plaintiff as administratrix of her deceased divorced husband's estate and guardian of their minor son, decedent's sole heir, was held not to be disqualified either as an interested person or as a "party to the action" to testify as to conversations with decedent. As bearing on her status as a "party" the opinion said: "An executor or administrator, while a necessary party to the record, is not a party to the issue," citing Bryant v. Livermore, 20 Minn. 313 (Gil. 271), described as a case involving the status of a guardian ad litem and general guardian and the right of a judge related to him to sit in a cause involving the interests of his ward.

The opinion in the Exsted case, speaking of the Bryant case, said it held the guardian was not a party to the action but arepresentative of the real party in interest and concludes:

"An executor or administrator fills a like capacity of legal representative appointed by the court of the estate of a deceased person and of trustee for all persons having rights in it. * * * Defendants do not assert that Mrs. Exsted would have been incompetent to testify had she resigned as guardian and administrator prior to the suit. The fact that she did not do so but instead carried out the order of the court by representing the estate and the infant * * * should not disqualify her as a witness."

I find a similar holding by the Maryland court in Johnson v. Johnson, 105 Md. 81, 65 A. 918, 921, 121 Am. St. Rep. 570. That court held that Mrs. Johnson, who represented her minor children as next friend in a will contest, was not a "party" within the meaning of the evidence act but was competent to testify as to personal transactions between herself and decedent, her divorced husband. See also Doty's Admrs. v. Doty's Guardian, 118 Ky. 204, 215, 80 S.W. 803, 806, 2 L.R.A., N.S., 713, 4 Ann. Cas. 1064, holding the plaintiff guardian a competent witness for the ward, David Irvine Doty, illegitimate son of herself and decedent, in an action for damages against decedent's estate, based on an alleged contract for her ward's benefit. The Kentucky court said:

"The plaintiff * * * is David Irvine Doty. The recovery is his. The guardian may be removed by the county court at any time. Her only power is to protect the rights of the infant while she is guardian. If she were to resign as guardian on learning that her testimony was necessary to protect his interest, and another were appointed in her stead, she could * * * testify for the infant in the action."

I concede the Kentucky statute is different from ours in that it provides "No person shall testify for himself," etc. Civil Code Proc., section 606. But following the strict and narrow construction given by the majority here to the words "party to any action" in our Code section (622.4, Code of 1946) the Kentucky court would have had to say the action was being prosecuted for plaintiff's benefit as guardian and that she was testifying "for herself." Instead that court cut through technicality and distinguished between the witness and theguardian, just as if they were separate persons, as indeed they were. There really is little real difference in meaning between a witness testifying "for himself" and one testifying against the other party as our statute provides. The real point is that when one is a "party" in a representative capacity only, he should not be deemed such when he testifies. He does not testify "for himself" as an individual.

In the cases I have cited the estate or person represented by the alleged "party" was directly interested in the litigation. Here even the estate, represented by Mr. Updegraff, had no interest in the result. It was a party to the record but not a party to the issue between appellants and appellee.

As suggested in both the Exsted and Doty cases, Mr. Updegraff could resign as executor and his competency as a witness would then be clear. Such roundabout procedure should not be necessary. There is no logic in construing the language of the statute so as to close the lips of a totally disinterested witness because of the death of a person who was in her lifetime, and whose estate is now also, without interest in the issue between these rival claimants to heirship; and this merely because the courtappointed the witness executor of the decedent's estate. Such strict construction is not necessary and operates here to the disadvantage of an innocent victim of circumstances. Such construction produces a result which is a far cry from the purpose of a statute designed to close the lips of a witness because his adversary, due to death or insanity, is not available to dispute him. It makes of the statute an artificial, technical and arbitrary instrument of injustice.

The majority opinion says: "Updegraff as a witness may not be separated from Updegraff, executor," citing Schmid, Admr. v. Kreismer, Admx., 31 Iowa 479. The witness in that case was the same person as the defendant but she was held disqualified as a witness, not because she was a party, but because at common law and under the Code of 1851, an administrator was on the ground of interest not competent as a witness in behalf of the estate. And though under section 3980 of the Revision of 1860 the general common law disqualification on account of interest was abolished, section 3982 of that Code restored it in cases where the adverse party (plaintiff) was an administrator. In other words she (as a witness) was incompetentas an interested person to testify as to facts that "transpired before the death" of the person of whose estate the adverse party (plaintiff) was administrator.

The distinction in status between Updegraff as executor and as an individual witness is sound and supported not only by the Minnesota, Maryland and Kentucky cases already cited but also by Penny v. Croul, 87 Mich. 15, 49 N.W. 311, 13 L.R.A. 83 — all involving the question in relation to so-called dead man statutes.

I conceive it our duty to construe the statute so as not to extend its area of disqualification. Our general statute abolishes the ancient common-law rule that rendered all parties and interested persons incompetent. Sections 622.1 to 622.3, inclusive, Iowa Code, 1946. Section 622.4 (the dead man statute) is in the nature of a saving provision. I would construe it liberally in favor of competency, where such construction does not open the door to the fraud and abuse which the statute is designed to prevent. The present case is a perfect example of the wisdom of such construction. I am not in sympathy with the apparently growing sentiment among lawyers over the country for total abolition of dead man statutes. Properly construed and applied they are wise and just. But they should not by technical application be used arbitrarily to exclude valuable and disinterested testimony. These are my reasons for dissenting in a case that concededly involves a small part of the decedent's estate and in which probably the same result would be reached without the testimony in question.

I would affirm.

HALE, WENNERSTRUM and MANTZ, JJ., join in this dissent.