In re Hess' Estate

Evidence of the conversations of a deceased person. Where a witness who is a party to the suit, or interested in the result thereof, is required on cross-examination to state a conversation with a person since deceased, held, the party so cross-examining1 thereby waives the protection of the statute, and, on redirect examination, such witness is competent to give the whole of such conversation, or to qualify or explain the same by other conversations with the deceased, relating to the same transaction. Former statements of a witness to affect his credibility. Held, the mere fact that a party to the suit gave evidence in a former suit between the same parties contradicting his evidence in the present suit does not conclude him as a question of law, but the effect to be given to his evidence is a question for the jury. Statute of limitation of actions. When services are rendered by one party to another under an agreement that the former shall be compensated out of the estate of the latter at the time of his death, held, the statute of limitations does not commence to run against the claim until the time of the death of the latter.

Appeal by James Hess, executor, and Ella Dearborn, executrix, of the will of Timothy Hess, deceased, from an order of the District Court of Winona County, Charles M. Start, J., made August 1, 1893, denying- their motion for a new trial. Timothy Hess, a farmer residing in Wiscoy, Winona County, died testate in December, 1889. The will was after contest admitted to probate. In re Hess’ Will, 48 Minn. 504. His daughter Mary Foster filed a claim for services as his housekeeper from September 1, 1874, to May 1, 1886, at $4 per week, $2,416, less a credit of $604 paid thereon. The Probate Court allowed her $1,244. The executors appealed to the District Court where pleadings were made up as in civil actions, pursuant to Laws 1889, ch. 46, § 260. The claimant stated in her complaint that at the request of deceased she performed services for him as housekeeper on his farm from September 1, 1874 to May 1, 1886, continuously except for about ten months in 1877 and 1878, that he promised her that she should be paid therefor partly from time to time and the balance out of his estate after his death, that her services were worth $4 per week and that she had been paid $604, and she prayed judgment for the balance, $1,828. The executors for answer made a general denial and alleged that the payment exceeded the value of the services and that the cause of action did not accrue within six years next preceding the testator’s death. At the trial the claimant was permitted after objection and exception to prove that the value of the estate was $5,000. The-executors afterwards proAred the same Aralue. She was a witness to prove her services and their value. On cross-examination she was asked about the promise made to her by her father so far as to show that he agreed to pay her $1 a week until the mortgage on the farm was paid off and $2 a week thereafter and that he paid these sums amounting to $604 which she allowed in the complaint. On redirect examination she was allowed after objection and exception to state the entire conversation as to the contract. The jury found for the claimant and assessed her damages at $736.50. They returned a special verdict that they did not include in the general verdict anything for her services prior to October, 1877. The executors moved for a neAv trial. The court denied the motion on condition that the claimant consent that the verdict be reduced to $500. She consented. The executors appeal from the order, The value of Hess’ estate was immaterial and the evidence of its value was prejudicial. On the cross-examination of the plaintiff she was questioned as to admissions, she had made on oath when testifying as a witness on the trial of the contest of the will of Timothy Hess in reference to the agreement between herself and her father under which she kept house for him. There was no objection to this examination. On being re-examined she was asked and permitted to state all the conversation with her deceased father in direct violation of the statute. 1878 G. S. ch. 73, § 8. This was error. If the cross-examination of the claimant called for a conversation between her and her father the extent to which she could testify on that question on redirect ex-animation would be to give the remainder of that conversation if any had been omitted. Hathaway v. Brown, 18 Minn. 414; Rhodes v. Pray, 36 Minn. 392; Rouse v. Whited, 25 N. Y. 170; Nay v. Curley, 113 N. Y. 575; Prince v. Samo, 7 Ad. & E. 627. The evidence as to the value of Hess’ estate was not prejudicial. The value was in fact admitted. Schwab v. Pierro, 43 Minn. 520. The cross-examination of the claimant as to a part of the conversation with her deceased father gave her the right to contradict or explain it on redirect examination. Teague v. Irwin, 134 Mass. 303; State v. Witham, 72 Me. 531; Mowry v. Smith, 9 Allen, 67; Furbush v. Goodwin, 25 N. H. 425; Merritt v. Campbell, 79 N. Y. 625; Nay v. Curley, 113 N. Y. 575.