Oliver, J.
-t-A rehearing having been-granted, the former opinion reported in 33 N.. W. 2d 866 is withdrawn- and this opinion substituted therefor; -.
. Jacob Conner and his Wife, • testatrix Zanette Conner, for many years lived on a farm' in Keokuk County, Iowa.; ..Their only child. Martha; was born in 1886. In ,1912 Martha married appellant, John Herman. Martha died testate -in--1944. Her estate was willed to her said husband. Appellants Elvin and Ernest Herman are their two adult sons. Appellee-. Ellis C. Conner coutends he was Martha’s illegitimate son, born in 1903.
The joint will of Zanette Conner, and her husband, Jacob, made in 1925, recited their .property was in fact owned by them jointly, regardless of their legal title. It gave the survivor a life estate in all the joint property, and subject -thereto-, certain real estele to their daughter, Martha, and other real estate to Ellis Conner, the residue to be converted into cash'and divided equally between Martha and Ellis. It was.probated first after Jacob’s death in 1936 and again after Zanette’s death in 1946. Ellis Conner was listed as a grandson in the records of both estates. A.ppellee TTpdegraff, the lawyer who drew the will,
was executor of the estate of Jacob, closed in 1938. He is now executor of Zanette’s .estate.
Shortly prior to Jacob’s death Zanette’s sister, Iowa Keister, died, leaving Zanette about $8000. The first order (1937) admitting to probate the joint will (to which Martha Herman and Ellis Conner and their spouses made written consent) adjudged the assets Zanette would receive from the Iowa Keister estate were Zanette’s separate and individual property and not a part of Jacob’s estate.
The personal property of Jacob’s estate consisted of 'farm machinery, equipment and animals, inventoried at $1500. The final report of appellee-executor for Zanette’s estate recites that Zanette, from her individual and separate estate (received from Iowa Keister), paid the debts of Jacob’s estate amounting to three or four thousand dollars, with the agreement she would reimburse herself from the sale of the personalty remaining when she ceased operating the farm, and that she did so.
The report recites also that the effective date of the testamentary disposition of Zanette’s separate and individual property (from Iowa Keister estate) as distinguished from the jointly owned property was the date the admission of her will to probate, that Martha Herman and Ellis Conner acquired no interest therein prior to her death, and that Martha having predeceased testatrix, Martha’s children and heirs at law, Ellis C. Conner, Ernest A. Herman and Elvin E. Herman, inherit Martha’s half of this property, in equal shares of one third each. (See section 633.16, Code of 1946.) Another recitation in the report is that a $4000 certificate of deposit payable to Zanette Conner or Ellis Conner, survivor, and held by the executor, was the property of Ellis Confier by virtue of an inter vivos gift from Zanette.
John Herman, Elvin Herman and Ernest Herman filed extensive objections to the final report and have appealed from the order overruling such objections and approving the report. Ellis Conner and C. G. Updegraff, executor of Zanette’s estate, are the appellees. The foregoing abridged statement is limited to such parts of the final report as' are involved in the appeal. There are three separate basic questions:
1. Whether Ellis Conner was Martha’s son.
2. Whether there, was a valid gift inter vivos from Zanette to Ellis of the $4000 certificate of deposit. . .
3. Whether Zanette’s estate should account to the remaindermen, of her husband’s estate.for. the proceeds of the sale of the personal property. ■.
The story of Ellis Conner’s lineage is set out in an affidavit, Exhibit A, made by .Zanette Conner in January 1945. It recites. Martha Conner, born in 1886, was the only child of Zanette and Jacob. In 1902 Martha had an affair with a man, became pregnant, and in February 1903 gave birth to Ellis Conner at a hospital in Chicago to which she had been removed by. her parents; Dr. Strawbridge, of Sigourney, made the arrangements and he and Zanette.were present at the birth of Ellis; Zanette brought the infant Ellis and Martha from Chicago to the Conner farm home where they all continued to reside as a family until Martha’s marriage to John Herman; Ellis was treated by. Zanette and Jacob as though he were their own child, was recognized as such, and was named a beneficiary in their joint vyill; Zanette was the. last living person with personal knowledge-of the fore-, going facts and made the affidavit that the true and correct parentage of Ellis, place and date of his birth might be known to all concerned. At the same time Zanette executed .another affidavit, Exhibit B, upon the form of Iowa State Health Department, Division of Vital Statistics, setting out the birth of Ellis at Chicago to Martha out of wedlock,. etc.
Elmer H. Mertz, a close friend of .the Conners, testified that in 1930 and several times thereafter, Zanette told him of Ellis’ birth, etc., the story repeated by the witness being substantially that set out in Exhibit.A,., She told him also- of-all their efforts to shroud Ellis’ birth in secrecy and that she wanted the.papers (Exhibits A and B) filed of record after her death.
A witness who lived in the Conner home testified that be-, fore Martha and Zanette went to Chicago the family said Martha-had a “white swelling”; that when neighbors worrld come to the Conner, home Martha would get into bed with her clothes on and would arise and work after their departure. Several witnesses who knew Martha expressed the opinion, she was then pregnant. There was evidence that later “there was common talk in the-
neighborhood that the child belonged to Martha.” Witnesses testified Ellis once introduced Martha as his mother and that she acknowledged the introduction.
I. Appellants complain that evidence of the oral and written statements of Zanette Conner relative to the lineage of Ellis Conner was admitted over their objections. Declarations with respect to pedigree and family history by a relative or one in such a position that he would be likely to know the facts and who is deceased or unavailable when the declarations are, offered in evidence constitute a recognized exception to the hearsay rule. 16 Iowa L. Rev. 92; In re Estate of Frey, 207 Iowa 1229, 224 N. W. 597; Alston v. Alston, 114 Iowa 29, 86 N. W. 55; In re Estate of Clark, 228 Iowa 75, 97, 98, 290 N. W. 13; In re Estate of Felle, 237 Iowa 1082, 23 N. W. 2d 910; In re Estate of Corbin, 235 Iowa 654, 17 N. W. 2d 417.
In re Estate of Carroll, 149 Iowa 617, 620, 128 N. W. 929, 930, states: “As a general rule such information ór statements concerning which a witness may testify must have antedated the litigation and the controversy, so that they could not have been induced thereby. They must be ante litem motam.”
When Ellis was a young man he was told he was illegitimate by his fiancee’s parents. He became very excited and demanded of Jacob and Zanette that he be told his pedigree, and he was told. Appellants argue this was a controversy and therefore the declarations of Zanette were not ante litem motam. This conténtion is without merit. Some of the declarations were made twenty years later and obviously could not have been induced thereby. Nor was this a controversy of the nature referred to in the rule. Certainly there was no controversy over Zanette’s estate until after her death. It is fair to assume that if she had any thought her estate might be involved in litigation over this question she would have avoided this by definitely providing for the disposition of her separate property as she desired.
Another contention is that Exhibits A and B were inadmissible because they were ex parte affidavits. The admission of these was proper, not because they were affidavits, but because they were written declarations. Their competency is governed by the same rule as Zanette’s oral declarations. In re Estate of
Frey, supra, 207 Iowa 1229, 224 N. W. 597; 20 Am. Jur., 411, Evidence, section 468.
Appellants contend also that declarations .are incompetent unless made to someone in the family. That is not the rule and the authorities do not so hold.
The evidence of general talk in the neighborhood that Ellis was Martha’s child was admissible.
In re Estate of Wise, 206 Iowa 939, 940, 221 N. W. 567, 568, states:
“It does appear, however, that it was the common and general report in the community that the decedent was the father of the appelle'e. While it -is true that such neighborhood belief or expression of opinion, or what is sometimes and quite properly denominated ‘village gossip,’ is not controlling in a case of this kind, we have held that evidence in regard thereto is admissible.”
Among other, decisions are Robertson v. Campbell, 168 Iowa 47, 55, 56, 147 N. W. 301; Trier v. Singmaster, 184 Iowa 307, 319, 167 N. W. 538; In re Estate of Clark, supra, 228 Iowa 75, 97, 290 N. W. 13. No error appears here.
Nor was it error to admit, over objections, the opinion testimony of lay witnesses qualified by their experience and observation that Martha was pregnant. 20 Am. Jur., Evidence, 719, 720, section 859; Yahn v. City of Ottumwa, 60 Iowa 429, 432, 15 N. W. 257; Shaw v. Duro, 234 Iowa 778, 790, 14 N. W. 2d 241.
Appellants assign error to the overruling of their objection to Elmer Mertz’ testimony relative to Zanette’s declarations in 1930, on the ground it was privileged because Mertz was a census taker. It is a sufficient answer that the record shows he was-not acting.as such when the declarations were made.
II. Zanette’s' individual, money from the Iowa Keister estate was deposited in a bank. Elmer II.' Mertz, the bank officer who handled Zanette’s business, testified that a few days •after Martha’s death in 1944 Zanette told him she wanted to give Ellis some of her money and instructed him that $4000 of said deposit, then represented by two certificates, was Ellis’ and
was to be delivered to him at her death, she to receive the interest for life. Mertz was instructed “to draw up the certificate so she could draw the interest.” Mertz indorsed the certificates then outstanding, “Credited to the account of Zanette Conner or Ellis Conner, Survivor”, and upon their maturity issued a certificate for $4000 to “Zanette Conner or Ellis Conner, Survivor.” He testified this certificate was submitted to and "approved by Mrs. Conner and that she referred to it as Ellis’ money and instructed him to deliver it- to Ellis when she died; that he placed the certificate in a safe-deposit box in the bank in which all her papers were kept but to which she had no access; that when the certificate matured he credited her drawing account with the interest and issued a renewal in the same form and that after her death, another officer of the bank, by mistake, turned the certificate over to executor Updegrafli.
The foregoing statement, .although not a summary of the record is sufficient to furnish the basis for the consideration of the principal assignments of error in this division of the case. Appellants contend Mertz was an incompetent witness under the dead man statute, section 622.4, Code of 1946, because he “is the person through or under whom Ellis Conner must claim.” This theory is incorrect and the rule of McClanahan v. McClanahan, 129 Iowa 411, 105 N. W. 833, cited in support thereof, has been repudiated by later decisions. Stiles v. Breed, 151 Iowa 86, 130 N. W. 376; Horner v. Maxwell, 171 Iowa 660, 153 N. W. 331; Stutsman v. Crain, 185 Iowa 514, 170 N. W. 806; In re Estate of Iwers, 225 Iowa 389, 280 N. W. 579; In re Estate of Larsen, 235 Iowa 57, 15 N. W. 2d 919. Mertz was merely to hold the evidence of the deposit during Zanette’s life and deliver it to Ellis upon her death. It matters not whether he be referred to as an agent or a trustee. He had no interest in the certificate or the deposit which he could pass to anyone. Tucker v. Tucker, 138 Iowa 344, 116 N. W. 119; In re Will of Gorden, 238 Iowa 580, 27 N. W. 2d 900.
Another contention is that Mertz’ testimony violated the parol-evidence rule in that it was an attempt to vary the terms of the certificate of deposit. The bank was the only party to the instrument who agreed to do anything. Generally speak-
ing, its liability could not be varied by parol. It is clear, however, a valid gift of the certificate of deposit or the funds represented thereby could be made by parol. Likewise, the intention of Zanette, the donor-depositor, in having the certificate made payable to herself or Ellis, survivor, could be shown by parol. Sinift v. Sinift, 229 Iowa 56, 81 to 86, 293 N. W. 841; In re Estate oE Winkler, 232 Iowa 9.30, 5 N.. W. 2d 153; O’Brien v. Biegger, 233 Iowa 1179, 11 N. W. 2d 412. Except where such intent is evidenced by an unambiguous written agreement it is proper to consider parol evidence. In re Estate of Murdoch, 238 Iowa 898, 901, 29 N. W.'2d 177; McManis v. Keokuk Sav. Bk. & Tr. Co., 239 Iowa 1105; 33 N. W. 2d 410; In re Estate of Winkler, supra. We conclude it was proper in this case.
Ellis’ failure to file claim within six months did not bar his rights under the nonelaim statute. Section 635.68, Code of 1946. The reason is this is not a claim against the estate. Ellis merely seeks to recover property which he asserts belongs to him and was converted by the executor.
Delivery of the certificate of deposit to Mertz with instructions to deliver to Ellis upon Zanette’s death was sufficient to consummate
a
gift inter vivos. Larimer v. Beardsley, Trustee, 130 Iowa 706, 107 N. W. 935; In re Estate of Podhajsky, 137 Iowa 742, 115 N. W. 590; Jones v. Nicholas, 151 Iowa 362, 130 N. W. 125; Pyle v. East, 173 Iowa 165, 155 N. W. 283, 3 A. L. R. 885; Reeves v. Lyon, 224 Iowa 659, 277 N. W. 749. We do not imply delivery'was essential in this case. See O’Brien v. Biegger, supra; In re Estate of Winkler, supra.
Nor was the gift testamentary in character. If a gift is absolute it will not be defeated by the mere postponement of the enjoyment until the donor’s death. In re Will of Gorden, supra, 238 Iowa 580, 27 N. W. 2d 900, and decisions last above cited.
The cause -was tried to the court, in probate, as an ordinary action and the findings of fact have the effect of a jury verdict. The finding that Zanette made a completed gift inter vivos to Ellis, of the certificate of deposit is supported by substantial evidence and will not be disturbed upon appeal. Nor
does reversible error appear in any rulings or orders of the court involving this phase of the case.
III. The trial court found all the personal farm property in the Jacob Conner estate, through an agreement among all the beneficiaries in the will consented to by the executor, was delivered to Zanette absolutely in consideration of her paying the debts and expenses of the Jacob Conner estate from her separately owned property, which payment exceeded the then value of said property and that the order approving the final report of the executor of the estate of Jacob Conner (which recited Zanette had paid direct, of her own account, all the debts and charges) constituted an approval of the executor’s consent to said arrangement. Hence, the executor of Zanette’s estate was not required to account to the remaindermen of Jacob’s estate for said property.
There was evidence that Zanette, Ellis, Martha and her husband made a family agreement among themselves that Zanette should take the personal property absolutely and in return should pay the estate debts and charges; that the executor consented to this agreement and it was carried out and no claims were filed against the estate, and that the amount paid out by Zanette was more than double the value of the personal property in question.
Beneficiaries under a will may agree to a distribution of estate assets in a manner different than the will provides. In re Estate of Swanson, 239 Iowa 294, 300, 31 N. W. 2d 385, 389, states that beneficiaries under a will may agree to disregard the instrument and have the estate distributed in any manner they see proper, that family settlements are favored by courts and that the beneficiaries are not compelled to accept provisions of the will, citing Harris v. Randolph, 213 Iowa 772, 783, 236 N. W. 51; 69 C. J., Wills, section 2673; annotation in 97 A. L. R. 468, 470; Coomes v. Finegan, 233 Iowa 448, 451, 7 N. W. 2d 729, 730. There is substantial support in the record for the finding by the court that Zanette took the personal property in question absolutely.
IV. We revex*t to the issue whether Ellis was Martha’s son and under the antilapse statute, section 633.16, Code of 1946, entitled to inherit, along with Elvin axxd Exuiest Herman,
the individual property of Zanette, willed to Martha. Over objections by appellants that he was an incompetent witness under the dead man statute, sectiun ■ 622.4, the court permitted Mr. Updegraff, executor of Zanette’s estate, to repeat communications between the witness and Zanette in which she detailed the story of Ellis’ lineag’e. Error is predicated upon these rulings. We conclude this assignment of error is well founded.
Mr. Updegraff was a party to the action within the purview of the dead man statute. Williams v. Barrett, 52 Iowa 637, 641, 3 N. W. 690, 693, states:
“Counsel for appellant contend that the witness was competent because he had no interest whatever in the question [concerning which he testified] * * *. This may be conceded, but the language [of the statute] * * * is plain and explicit that
‘no party
to any action or proceeding * * # shall be examined as a witness * * * against the executor or heir at law * * * of such deceased persons.’
* *
*. John T. Clark was a party to the action, and for that reason was- disqualified as a -witness to testify to personal transactions between himself and the deceased. We think the fact that the other defendants were not necessarily jointly liable with him, and that separate actions might have been maintained against the defendants, makes no difference. There was but one action on trial, and the witness being a proper party defendant therein was by the very terms of the statute incompetent to testify to.the facts under consideration.”
Bohle v. Brooks, 225 Iowa 980, 983, 282 N. W. 351, 353, states:
“Even thó the interest of Mr. Brooks is only nominal, yet he is a party to the action, and in conformity with the statute and our former pronouncements, as such party he is incompetent to testify as to the personal transactions with the ’ decedent.”
Burton v. Baldwin, 61 Iowa 283, 285, 16 N. W. 110, 111, held incompetent the testimony of Sophronia Baldwin who was made a party to a partition proceeding for the purpose of ascertaining and assigning her dower, and stated:
“She is a party to the action, her testimony relates to a
personal communication between herself, and a person now deceased, and is given against the heir at law of such deceased person. It is true, she has no interest in common with the other defendants against the plaintiff, but such adverse interest does, not seem to be. necessary in order to the exclusion of the testimony.” . '
In the language of Clinton Sav. Bk. v. Underhill, 115 Iowa 292, 294, 88 N. W. 357, 358: “A mere nominal party, or one who has ño substantial interest in the action, is disqualified under this section.”
To the sameeffeet is Nugent v. Dittel, 213 Iowa 671, 239 N. W. 559.
In Frye v. Gullion, 143 Iowa 719, 724, 121 N. W. 563, 565, 21 Ann. Cas. 285, parties to partition proceedings filed a disclaimer. The court said this “may possibly have removed the disqualification of interest; but it could not remove the disqualification which still .attached to them as parties, unless we are able to say that they were no. longer proper parties to the action.” ....
James v. Fairall, 168 Iowa 427, 431, 148 N. W. 1029, was an action to set aside a will.
A.
devisee who had' been mad^ a party defendant filed a disclaimer and the action was dismissed as to him., ■ The court held the circumstances indicated collusion with plaintiff and the dismissal did not have the effect of making his evidence competent.
An article by Mason Ladd in 19 Iowa L. Rev. 521, 526, discusses the decisions and states:
“The statute excludes parties because they are parties and as distinguished from persons interested in the litigation. *
*
* The cases in the above situations have applied literally the statute which is apparently based upon the theory that even nominal parties would be. sufficiently concerned in the interests which they merely represent to be unsafe as witnesses.”
The text in 70 C. J., Witnesses, 229, section 291, states: “Under some statutes, however, the interest of a party is not necessarily an element, of his .ineompetency * Citing, among others, several Iowa decisions.
In considering his competency under the dead man statute Updegraff as a witness may not be separated from Updegraff, executor. This court held in Schmid v. Kreismer, 31 Iowa 479, that while generally an administrator is a competent witness for the estate, he is not competent in a case where the adverse party is also an administrator.
Although Iowa decisions uniformly hold the witness incompetent under the dead man statute though a mere nominal party, Mr. Updegraff was not in that category. This was not merely a controversy between rival claimants of a, part of the property. Some of the parties contended the executor should be required to account to the remaindermen of Jacob Conner’s estate. Ellis claimed the certificate of deposit not from the Hermans but from the executor and the court ordered the executor to deliver it to Mertz for Ellis.
These examples make it clear the executor was not a mere nominal of formal party to the action but was-a real party in interest, in his capacity as such. However, it is immaterial whether he was a real party in interest as to the issue involved in this phase of the case. The Iowa statute covers parties to the action or proceeding, not merely parties to the issue in question. See authorities above cited. In that respect the Iowa statute differs from statutes in some other states.
The dissenting opinion refers to a Minnesota decision. The Minnesota statute states: “It shall not be competent for any party to an action * * * to give evidence therein of or concerning any conversation * * * relative to any matter at issue between the parties.” 2 Mason’s Minn. Stat. (1927) section 9817, M. S. A. (1947) section 595.04. It has been held the term party to the action, under that section, means a party to the issue to which the testimony relates, and not merely a party to the record, Bowers v. Schuler, 54 Minn. 99, 55 N. W. 817, and that an executor or administrator while a necessary party to the record is not a party to the issue, Exsted v. Exsted, 202 Minn. 521, 279 N. W. 554, 117 A. L. R. 599.
These decisions do not accord with those of this court under the Iowa statute. Schmid v. Kreismer, supra, 31 Iowa 479; In re Estate of Manning, infra, 215 Iowa 746, 750, 244 N. W. 860. They serve to indicate that in cases of this nature decisions
of, other courts based, upon other statutes , are of questionable value. • ■ .
Zanette’s will devised Mar.tha half of Zanette’s individual property. Martha predeceased, Zanette. Under the antilapse statute Martha’s heirs inherit this property. ;Her sons, appellants Elvin and Ernest Herman, are in this.classification. However, they do not inherit this property from Martha. They take it direct from Zanette under her- .will. .. In re Estate of Hulett, 121 Iowa 423, 96 N. W. 952. The effect of the statute is to make, the heirs of Martha, devisees, in-Zan.ette’s will, by substh tution. McAllister v. McAllister, 183 Iowa 245, 252, 167 N. W. 78.
/..„Hencq Elvin, and Ernest .ar.e,: devisees,.in Zanette’s will within .the classification and protection of .section 622.4. That Updegraff. as executor, would likewise be protected would not alter the situation. The protection afforded, by the statute is a shield,,.not. a sword.... Code section 622.5. does not make the executor, heir et al. competent to testify to communications between the. witness and. decedent against another party protected by section 622.4. O’Brien v. Biegger, 233 Iowa 1179, 1209 et seq., 11 N. W. 2d 412; Duffield v. Walden, 102 Iowa 676, 680, 72 N. W. 278; Neas v. Neas, 61 Iowa 641, 643, 17 N. W. 30; In re Estate of Manning, 215 Iowa 746, 750, 244 N. W. 860.
On appeal in an action, at law tried without a jury, where .evidence was admitted over objections, • it will be presumed the. court considered such evidence, and if it is incompetent and the evidence as .a whole is conflicting, the judgment will be reversed. Leasman v. Nicholson, 59 Iowa 259, 12 N. W. 270, 13 N. W. 289; Jaffray v. Thompson, 65 Iowa 323, 21 N. W. 659; Iowa Electric Co. v. Scott, 206 Iowa 1217, 220 N. W. 333. Although there was other strong and persuasive evidence ample to support the finding of the trial court that Ellis was Martha’s son and the evidence in opposition thereto was largely negative in character, there was enough conflict in the record to make Ellis’ lineage a question of fact rather than of law. Hence, a reversal is necessary.
However, the issues in this division of the case were separate and distinct from those of the other divisions involved in this appeal. The case was tried to the court and involved other issues not presented upon appeal. Under all the eircum
stances we conclude that part of the order relating to the $4000 certificate and that part relating to an accounting for the proceeds of the sale of the personal property should be affirmed and only that part based upon the finding Ellis was Martha’s son should be reversed and ordered remanded for further proceedings. In re Estate of Ring, 237 Iowa 953, 968, 22 N. W. 2d 777, and citations.
The costs upon appeal are ordered taxed two thirds to appellants and one third to appellees. — Affirmed in part, reversed in part and remanded.
Bliss, Garpield, Mulroney, and Hays, JJ., concur.
Smith, Hale, Wennerstrum, and Mantz, JJ., dissent.