In re Hess' Estate

Canty, J. The claimant, Mary Foster, was the daughter of Timothy Hess, and after the death of his wife, in 1874, performed services-in keeping house and doing domestic work for him and her brother until 1877, and did the same character of work for him again from. 1878 to 1886. He died in 1889. She filed a claim against his estate for these services, alleging that he agreed with her that she should be paid what her services were-reasonably worth out of his estate at the time of his death; that said services were worth $4 per week for all of said times; and that no part thereof had been paid except $604. An appeal was taken from an allowance of her claim in the Probate Court. She recovered a verdict in the District Court for the last period of her service of' $736.50. The court, on motion for a new trial, cut the verdict down to $500, and, on her acceptance of that sum, denied the motion for a new trial, and the executors appeal. The first assignment of error is not well founded. The court admitted immaterial evidence against the objection that it was immaterial, and the defendants proved the same facts themselves by other evidence. The claimant was a witness on her own behalf, but was not allowed on her examination in chief to testify to any conversations with the deceased. On cross-examination she was questioned' about the terms of this contract between her and deceased as to her services, so as to draw out from her the statement that her father285 agreed to pay her $1 a week for a part of the time, and $2 a week for the rest of the time of her service, and that he had paid her these sums, amounting in all to §604. On redirect examination the witness testified, against defendants’ objection and exception, that her father agreed to pay her this as pin money, or for her current expenses, but also agreed that she should be paid the balance of what her services were worth out of his estate after his death. This is assigned as error. The statute makes any person a party to or interested in the result of a suit incompetent to testify to conversations with a deceased person. But the opposite party must respect this statute himself. If he cross-examines such a witness as to such conversations, so as to bring out a partial statement of any such conversation, he thereby waives the statute, and on redirect examination the witness is competent to give the whole of such conversation, or qualify or explain the same. The claimant also admitted on said cross-examination that, in a former proceeding to contest the will of deceased, she testified that she was to get but $1 a week for a part of her service, and $2 a week for the rest, and that her father did not owe anything when he died. Defendants excepted to the refusal to give instructions asked by them to the effect that the claimant was concluded by this testimony, and could not explain or contradict it, and, for the same reason, excepted to parts of the charge given, and assign this as error. It was not error. It was a question for the jury to decide on the effect of this contradictory evidence, not for the court. The refusal of the court to charge that the statute of limitations had run against this claim is assigned as error. If, as the jury found, it was agreed that the claimant should be paid out of the estate of deceased at the time of his death the contract was valid, — Schwad v. Pierro, 43 Minn. 520, (46 N. W. 71;) and the statute did not commence to run until that time. The other assignments of error are without merit, and the order appealed from should be affirmed. So ordered. Buck, J., absent, sick, took no part. (Opinion published 59 N. W. 193.)