Collins v. Hayden

The opinion of the court was delivered by Mason, J.: Some of the heirs of George C. Hayden brought an action to set aside deeds executed by him to three of his sons, the petition alleging that he was incapable of transacting business, and that his signature had been procured by fraud and undue influence. Judgment was rendered for the defendants, and the plaintiffs appeal. 1. A reversal.is asked on the ground that error was committed in permitting another son of the decedent, who drew the deeds in question, to testify in behalf of the defendants, over the objection that he was disqualified by the rule relating to evidence concerning transactions with a person since deceased. , (Civ. Code, § 320, Gen'. Stat. 1915, § 7222.) This wit [352] ness was not a party to the action, but his testimony seems to indicate that a part of the land would have been deeded to him except for an arrangement between himself and his brothers by which they paid for having it conveyed to them, so that he may be said to have had a financial interest in the deeds being upheld. Prior to 1911 the statute provided that under certain circumstances “no party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person.” (Gen. Stat. 1909, § 5914.) In that year an amendment was made by which (among other changes) the word “person” was substituted for “party” where it first occurs in the'clause quoted, but not where it is used a second time, in the phrase “by such party.” Of this change it has been said: “While the wording of the amended act is somewhat confusing it is clear that a witness in a case between others can hardly be testifying in his own behalf so long as he is not a party to the action” (Hess v. Hartwig, 89 Kan. 599, 600, 132 Pac. 148); and also: “This change . . . suggests a purpose to extend the rule to witnesses who are not parties; but a contrary inference can be drawn from the fact that in defining the subject as to which the witness is disqualified, the statute still retains the phrase ‘to any transaction or communication had personally by such party with a deceased person.’ ” (Cadwalader v. Pyle, 95 Kan. 337, 341, 342, 148 Pac. 665.) In a doubtful case this court inclines to an interpretation of a statute that will admit, rather than reject, evidence. (Williams v. Campbell, 84 Kan. 46, 50, 51, 113 Pac. 800; Sarbach v. Sarbach, 86 Kan. 894, 896, 122 Pac. 1052.) In view of the ambiguity noted, we cannot attribute to the legislature a purpose to exclude the testimony of a witness in the class of cases referred to, whenever a decision in favor of the party calling him would inure to his own benefit. It follows that the evidence was rightly admitted. 2. If, however, the witness were held to have been incompetent, the result would be the same. The case having been tried without a jury, the admission of incompetent evidence is not á ground of reversal unless without it the judgment must necessarily have been different, or its reception is in some other ■ way affirmatively shown to have affected the result. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748.) The appellants argue that their evidence tended to show fraud and un [353] due influence in procuring the execution of the deeds in question ; that this evidence was not contradicted otherwise than by the testimony of the witness whose competence is attacked; and that therefore judgment would have been rendered for the plaintiffs if this testimony had been rejected. The evidence is not set out in the abstract, but assuming its condition to be as the plaintiffs say, their conclusion does not follow. The burden rested on them to produce evidence sufficient to convince the trial court that the execution of the deeds was wrongfully procured. Notwithstanding their witnesses may have given evidence to that effect, which was not directly contradicted, we cannot presume that it contained no elements of improbability such as to suggest a doubt of its truthfulness, and in any event the question of veracity was, one of fact, to be finally determined by the tribunal charged with the solution of such problems. (The State, ex rel., v. Woods, 102 Kan. 499, 170 Pac. 986.) No special findings were made or asked, and there is nothing to indicate that the decision of the trial court was influenced by the evidence of the witness in question, so that no prejudice would be affirmatively shown, if it had been decided that he was incompetent. The judgment is affirmed.