Young v. Otto

Misconduct of jurors who are subsequently excluded from the jury. Where misconduct of two jurors, and of the party with those two, was discovered, and brought to the attention of the court during the trial, and by consent the two jurors were excused, and the trial proceeded with the other ten, such misconduct is not ground for granting a new trial. Findings sustained by the evidence. Evidence held sufficient to sustain findings of fact. Error cured. Error in excluding a witness’ answer to a question held cured by subsequently permitting the answer. Stating the purpose of evidence offered. Where but one purpose is apparent from a question to a witness, and for that purpose the question is incompetent, and on that ground it is objected to, and the objection sustained, the party asking it cannot be permitted to claim it was competent for some other purpose, unless he stated that purpose before the court ruled upon the objection. Test of mental capacity. Where a party, in anticipation of death, and with a view to that event, makes final disposition of his property, whether entirely by will or entirely by ante mm'tem, transfers, or by both, the test of mental capacity to do so is the same, to wit, that applicable in case of wills.

Appeal by defendant, Ernest Otto, from an order of the District Court of Wright County, Seagrave Smith, J., made November 11, 1893, denying his motion for a new trial. On January 10, 1893, William Otto, a farmer of Wright county, died of consumption at Minneapolis where he had gone for medical treatment. The plaintiff, George E. Young, was on February 16, 1893, duly appointed by the Probate Court of Wright county administrator of his estate and as such on April 14,1893, brought this action of replevin against Ernest Otto, brother of deceased, to recover possession of three horses, four cows, young cattle, hogs, grain, hay, farm machinery and other property described, or $1,178.70 the value thereof in case possession could not be obtained and $500 damages for its detention. The defendant answered claiming title to the property under two bills of sale made by deceased, one on December 30, 1892, and the other on January '2, 1893. Plaintiff claimed that the two bills of sale were made by deceased while he was mentally unsound and incapable of contracting and were procured by undue influence exercised over him by the defendant and Ms sister, Anna Kubon, and were without consideration. At the time of executing the last bill of sale he also executed a will by wMch he devised two thirds of his real estate to his father and mother and the other third to his wife with whom he was in discord. He left no children. Specific questions of fact involved in the issues were framed and submitted to a jury. During the trial on June 15, 1893, two of the jurors went out in the evening with the plaintiff, the widow, her brother and his wife, and others on Buffalo JLalae in a boat, fishing. The matter was reported to the court next morning and by consent the two jurors were excused and the trial proceeded with the remaining ten. Martha Kubon, a witness for defendant, was asked by him to state what was the mental condition «of deceased his capacity to understand when the bills of sale were made. This was objected to by plaintiff and excluded. After she liad, subsequently stated incidents in his conduct and demeanor «observed by her, she was permitted to answer. This ruling excluding her answer at the first is defendant’s fifth assignment of error. The defendant was a witness in his own behalf and was asked by Ms counsel to state what was said, when the first bill of sale was executed, about a debt of $400 which he and the deceased owed jointly. This was objected to as incompetent, the other party being •dead. The objection was sustained. Defendant excepted to the liudmg. His counsel then stated that he offered the evidence on the -question of the competency of the deceased, but nothing further was said on that point and the matter was dropped. This is defendant’s sixth assignment of error. The jury in answer to the ¡specific questions of fact submitted to them found that William Otto had not, when he executed the bills of sale, sufficient mental capacity to execute them and that they were procured by undue influence of the defendant over him. The court made findings embracing this verdict and directed judgment for the plaintiff. Defendant moved for a new trial. Being denied he appeals. The prevailing plaintiff Young, the widow Mary Otto, and two important witnesses for them went on Lake Buffalo in a small boat with two jurors at night, pending the trial. This misconduct was; caused by the prevailing party. He interfered with the orderly-administration of justice and should not be permitted to prevail. Our statute provides for new trials for misconduct of prevailing-party. Here prevailing party has not explained his misconduct. Koehler v. Cleary, 28 Minn. 325. A witness whether professional or not may state the opinion.formed by him upon his own knowledge of facts as to vendor’s, state of mind. The fact that the witness, Martha Kubon, was allowed afterwards to testify to the mental condition of deceased on December 30 and January 2, does not cure the error in excluding-the previous offer. Defendant had a right to show his condition before and after the transaction. Woodcock v. Woodcock, 31 Minn. 217; In re Pinney’s Will, 27 Minn. 280. The court erred in sustaining the objection of plaintiff to the question asked of Ernest Otto specified in the sixth assignment of error.. When the capacity of vendor is attacked his declarations may be-offered in evidence. Howe v. Howe, 99 Mass. 88; Howell v. Howell 47 Ga. 492; In re Pinney’s Will, 27 Minn. 280; Woodcock v. Woodcock, 36 Minn. 217. This was no attempt to prove a contract. That was already in evidence and was under seal and imported a consideration. The-only questions in issue were those of capacity and undue influence.. The charge to the jury as to the mental capacity of deceased te» make a bill of sale is erroneous. The rule given may apply to capacity to make a will but not a mere bill of sale. It requires the-very highest intelligence and under the rule stated no contract would stand. It is not the test of a valid contract. If any wrong occurred from the evening boat ride it was healed' by dismissing the two jurymen at defendant’s request. The exclusion of the answer of Martha Kubon to the question as to William’s mental condition, his capacity to understand, from the-time he came to Minneapolis up to the Saturday before he died, if error, was cured by finally receiving her testimony. The court’s refusal to allow Ernest Otto to state what was said between him and William as to the $400 was objected to on the ground that William was dead. The court sustained the objection and the plaintiff excepted. Clearly the ruling of the court was right. After the matter had been thus decided counsel made the remark, “We offer that on the question of competency.” The court and plaintiff’s counsel waited for him to ask his question again after announcing this ground, but he did not. Appellant concedes that the rule laid down by the court in the charge applies to a will but contends that it does not apply to a bill of sale. But let it be remembered that the court was talking of these bills, of sale and this will and that the evidence tended to show that these three papers were a part of one scheme to make final disposition of his property in view of death and to take everything from the widow.