Light v. Ash

119 N.W.2d 90, 116 N.W.2d 90, 174 Neb. 627, 1963 Neb. LEXIS 249

• Court: Nebraska Supreme Court
• Decided: January 11, 1963
• Docket: 35156
• Status: Published

Opinions

Brower, J.

Appellants contend on rehearing that this court was in error in holding that the evidence of the oral contract is not clear, convincing, and satisfactory. After a review of this evidence, we conclude that our former opinion reported ante p. 44, 115 N. W. 2d 903, arrives at the correct conclusion on this point.

Appellants insist, however, that the testimony of Allen Light and Amber Ash was clear, convincing, and satisfactory, and was sufficient to make a prima facie case. We think there is an additional reason why the contention of appellants cannot be accepted.

Allen Light is the husband of Blanche I. Light, the daughter of Etta Ash. Amber Ash is the wife of Boyd Ash, a son of Etta Ash. Both are nonresidents of Nebraska and were held to be competent witnesses under our holding in Kiser v. Sullivan, 106 Neb. 454, 184 N. W. 93. We think this decision is in error in holding that the spouses of nonresident owners of Nebraska real estate are competent witnesses.

'"It is provided by section 25-1202, R. R. S. 1943, in part as follows: “No person having a direct legal interest in the result of. any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness, * * The only criterion for determining the competency, of a witness under this statute is whether or not the witness will benefit from the result of the case in which he seeks to' testify. With the exception of Kiser v. Sullivan, supra, this court has consistently adhered to this construction of the statute. See, In re Estate of Tilton, 129 Neb. 872, 263 N. W. 217; Craig v. Seebecker, 135 Neb. 221, 280 N. W. 913; Oft v. Ohrt, 128 Neb. 848, 260 N. W. 571. Under these cases, the interest of the witness in the result of the litigation, and not his relationship or status with interested parties, determined the question of the competency of the witness to testify.

In the instant case, a successful result would invest the four children of Etta Ash with her estate, share and share alike. It would likewise invest the spouses of the children with a marital interest. Each child and spouse therefore has a direct legal interest in the result of the litigation as we held in Holladay v. Rich, 93 Neb. 491, 140 N. W. 794.

In Kiser v. Sullivan, supra, we created an exception to the general rule that the competency of a witness under section 25-1202, R. R. S. 1943, was based solely on his interest in the result of the litigation. In Kiser v. Sullivan, supra, we determined that becausé a nonresident owner of’ Nebraska real estate could bar the marital interest in his spouse without her joining in the conveyance, as provided by section 30-105, R. R„ S, 1943, that the spouse was competent to. testify irrespective, of section 25-1202, R. R. S. 1943.

The spouse of a nonresident owner of Nebraska land has the same marital interest in it as does the spouse of a resident owner. The fact that the marital interest of a nonresident spouse may be barred by a different form of conveyance than that of a resident spouse.does not defeat the marital rights of the nonresident spouse when no such conveyance was made, The assumption in Kiser v. Sullivan, supra, that a nonresident spouse had no marital interest in Nebraska real estate because the title-owning spouse could bar it without a joinder of his spouse in the conveyance, is fallacious. We think that the marital interest of the spouse , of a nonresident owner of Nebraska real estate is identical with that of the resident owner and that such nonresident spouse is an incompetent witness to the same extent and under the same conditions as a resident spouse. We, therefore, overrule Kiser v. Sullivan, supra, as it relates to the competency of spouses of nonresident owners of Nebraska real estate to testify irrespective of section 25-1202, R. R. S. 1943.

Having arrived at this conclusion, Allen Light and Amber Ash were incompetent witnesses, they having a direct legal interest in the result of the litigation within the purview of section 25-1202, R. R. S. 1943. The incompetency of these two witnesses leaves the appellants without competent evidence to- support the allegations of their petition. For the reasons stated in this supplemental opinion, in addition to those stated in our previous opinion, the motion for a rehearing is overruled.

Motion foe rehearing overruled.