Tyler v. Estate of McDougal

Day, J. Etta Tyler filed a claim against the estate of Mary A. McDougal, deceased, for $500, which she asserts was loaned deceased during her life. Upon trial to. a jury, a verdict was returned in favor of claimant. This case has been before this court before (Tyler v. Estate of McDougal, 126 Neb. 534, 253 N. W. 672; id. 127 Neb. 681, 256 N. W. 518) when it was held that the evidence did not support the finding of the trial court that the amount of the purported loan was $500. The claimant established her claim entirely by testimony of disinterested witnesses as to admissions of the deceased during her lifetime that she had borrowed $500 from the claimant. The appellant contends that such evidence is insufficient as a matter of law or matter of fact to establish a cause of action. The only authoritative opinion cited to support this contention is Kislingbury v. Evans, 40 Utah, 356, 121 Pac. 571, which holds: “Under the statute prohibiting a party to testify to any transaction with a decedent, or to any matter of fact equally within the knowledge of the parties and decedent, a plaintiff suing a decedent’s estate for money loaned decedent on an open account is incompetent to testify, when shown a memorandum book and asked what it is, that it is the money that she loaned to decedent, and such testimony may not be considered as evidence of a loan.” This does not seem applicable to our case, since Mrs. Tyler did not testify as to the declaration [635] of Mrs. McDougal. Of course, under our statute, she was likewise an incompetent witness. However, the authorities almost unanimously support the following proposition: In an action against a decedent’s estate for money loaned, a disinterested witness is competent to testify to admissions against interest by the deceased as to what she owed claimant. Hartley v. Hartley, 50 Ga. App. 848; Finney v. Rollins, 127 Ark. 617, 192 S. W. 210; Schell v. Weaver, 225 Ill. 159, 80 N. E. 95; Jamison v. Jamison, 113 Ia. 720, 84 N. W. 705; Mohn v. Mansfield, 167 Mich. 10, 132 N. W. 525; Estate of Linkman, 191 Wis. 353, 210 N. W. 705. It is urged that the evidence in this case is substantially the same as that on the former appeal. The rule is: “When the evidence is substantially the same as on a former appeal, the weight and effect to be given such evidence must be considered as foreclosed by the former decision on that point.” Hruby v. Sovereign Camp, W. O. W., 83 Neb. 800, 120 N. W. 427. While the record in the former trial is not before us for the purpose of comparison, a reference to the two former opinions in this case indicates that the evidence is not substantially the same. There are other and different witnesses, who testify as to admissions of the decedent relative to the loan by the claimant here, with particularity sufficient to establish the fact, if believed, that the decedent was indebted to the claimant for money borrowed in the sum of $500. The jury believed these witnesses. Under these circumstances, the judgment cannot be disturbed. Affirmed.