Opinion
May 26, 1948. —
July 1, 1948.
APPEAL from a judgment of the county court of Waupaca county: A. M. SCHELLER, Judge. Reversed and cause remanded.
For the appellant there was a brief by Fischer, Brunner Strossenreuther of Shawano, and oral argument by. O. B. Strossenreuther.
For the respondents there was a brief by Clifford C. Mullarkey and Nathan E. Wiese, both of Clintonville, and Richard E. Johnson of Waupaca, and oral argument by Mr. Mullarkey.
On August 18, 1943, Henry Schultz executed his last will and testament. He died April 17, 1947. His will was duly admitted to probate in the county court of Waupaca County on June 10, 1947. Paragraph 3 provided:
"In case my wife, Mary Schultz, shall predecease me, then in that case I give, devise and bequeath as follows:
"a. To my daughter, Ella Yungwirth, I give my homestead in the city of Clintonville, described as follows:" (Description omitted.)
Mary Schultz, wife of the testator, predeceased him. On the 29th day of June, 1944, the testator sold the house devised to Ella Yungwirth for the sum of $3,000, which was deposited in the Dairyman's State Bank at Clintonville in the name of the testator and Walter Schultz, jointly, with right of survivorship. At the time this deposit was made an additional sum of $100 was added thereto, and on January 13, 1944, the further sum of $137.08, and on May 25, 1945, the sum of $197 was withdrawn from the account by the testator.
The executor petitioned the county court for construction of paragraph 3 (a) of the will. At the hearing on the petition the following stipulation was made:
"It is stipulated by and between the parties hereto and their respective attorneys that this hearing, originally one for the construction of the last will and testament of Henry Schultz, shall be used as a basis for determining any and all rights that Ella Yungwirth may have in the estate of her deceased father, Henry Schultz, whether the same be directly under the will or whether the court should find that a trust was created from the proceeds of the sale of the house by the testator during his lifetime. The purpose of this stipulation is to obviate the necessity of the commencement of any further proceedings in this court for the purpose of having this court determine the rights of Mrs. Yungwirth in and to the estate of her deceased father, and that the court shall in this proceeding make a complete determination of those rights, if any."
In the course of the hearing the witness Walter Schultz was asked the following question:
"Tell the court why this deposit [referring to the $3,000 deposit] was made, how made and facts following the deposit."
Mr. Mullarkey: "I object to this testimony of this man in attempting to get in in regard to his deceased father."
Court: "Objection sustained."
Later the witness was asked this question:
"What was the reason that this joint account was created?" A. "Joint account created for the sale of the house that Ella Yungwirth should get the money from the sale of the house."
Mr. Mullarkey: "Object to this testimony. It is not admissible."
Mr. Johnson: "I also object."
Court: "Objections sustained. This testimony is not admissible."
Counsel then called Walter Schultz as a witness for claimant. After testifying to the details of the sale of the property witness was asked the following question:
"Tell the court what your father told you in the Dairyman's State Bank; what you were to do with the check of $3,000 which you had from Mr. Olen for the sale of the house."
Mr. Johnson: "Same objection applies to that question. It is the same question that Mr. Wiese asked before."
Mr. Mullarkey: "I object too."
Court: "Objection sustained."
Counsel for the claimant then made the following offer of proof:
"Now Ella Yungwirth hopes to prove by this witness that at the time he went down to the Dairyman's State Bank with his father Henry Schultz, with the $3,000 check which was the proceeds from the sale of the house described in paragraph 3 of the will of Henry Schultz, Henry Schultz at that time directed this witness to place the $3,000 in a joint account between himself and that is Henry Schultz and Walter Schultz and directed him to permit the fund to remain and until such time as Henry Schultz should die and that after his death he was to pay the sum of $3,000 to Ella Yungwirth. Also further prove to show by this witness at the time deposit was made he disclosed to Walter Schultz that he had provided for Ella Yungwirth in his will by giving her the house in life and since selling prior to his death, that he wanted the proceeds thereof to be set aside in trust for her upon and after his death."
Mr. Johnson, guardian ad litem, made the following objection:
"Make same objection on behalf of the minor heirs in admission to any testimony of this witness with any transactions with the deceased party."
There appears to have been no ruling upon this objection. Findings of fact and conclusions of law were filed by the court, and the following judgment entered on November 12, 1947:
"It is accordingly, ordered, adjudged and decreed, that paragraph 3 (a) of the last will and testament of Henry Schultz was revoked by the testator during his lifetime, and is of no effect, further, that Ella Yungwirth has no interest, right or title in the proceeds derived from the sale of the premises in question."
From this judgment the claimant appeals.
On behalf of Ella Yungwirth it is argued that the legacy was not adeemed by the sale of the premises described in the will. We do not find it necessary to determine this question.
It is further argued that the court erred in excluding the testimony of Walter Schultz which, if admitted with other testimony, would have established a trust in the proceeds of the sale of the house in Ella Yungwirth as beneficiary.
In the first place the objection made upon the trial was not sufficient to raise the question whether Walter was a competent witness in behalf of Ella Yungwirth, the objection being upon the ground that it called for a transaction with a deceased person, did not raise the question as to his competency. Zimdars v. Zimdars (1941), 236 Wis. 484, 295 N.W. 675.
However, in view of the fact that the case must be remanded for a new trial, at which time a proper objection would probably be made, we deem it advisable to deal with the question at this time, inasmuch as it has been fully argued.
Sec. 325.16, Stats., provides:
"No party or person in his own behalf or interest, and no person from, through or under whom a party derives his interest or title, shall be examined as a witness in respect to any transaction or communication by him personally with a deceased or insane person in any civil action or proceeding, in which the opposite party derives his title or sustains his liability to the cause of action from, through or under such deceased or insane person," etc.
The statute abrogates the common-law rule that interest disqualifies a witness, but is limited in its operation to the remedial provisions which effect that abrogation and does not disqualify a party to a contract or cause of action from testifying, but only from testifying in his own favor or in favor of any party to the cause of action claiming under him. Zimdars v. Zimdars, supra; Dilger v. Estate of McQuade (1914), 158 Wis. 328, 148 N.W. 1085; Crowe v. Colbeth (1885), 63 Wis. 643, 24 N.W. 478. See also Darnell v. Darnell (Mo.), 174 S.W.2d 812, 149 A.L.R. 1125, and cases cited in note.
By the residuary clause of the will all the rest and residue of the estate was devised and bequeathed to the daughter Anna Abraham and Walter Schultz. Anna Abraham predeceased the testator, leaving issue. It as therefore apparent that if a trust is established in favor of Ella Yungwirth in the proceeds derived from the sale of the homestead that Walter Schultz will be the loser by at least $1,500. Under the offer of proof made Walter would be testifying against his own interest.
Ella Yungwirth does not claim under, by, or through Walter Schultz. She claims under the trust created in her favor by her father.
We have no doubt that Walter was a competent witness in behalf of Ella Yungwirth. The trial court was in error in excluding the evidence, even if the objection had been sufficient to raise the question of competency.
By the Court. — Judgment reversed, and cause remanded for new trial.
MARTIN, J., took no part.