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Forsyth v. Heward

January 1918


Appeal from Second Judicial District Court, Washoe County; J. Emmett Walsh, Judge.

James T. Boyd and Ayres & Gardiner, for Appellants.

Dixon & Miller and W. L. Hacker, for Respondent.

By the Court, Coleman, J.:

Plaintiff by this action seeks the specific performance of two alleged contracts. The complaint alleges that the plaintiff is the issue of the marriage of Wm. T. Bacon and Harriet G. Bacon, now Harriet G. Murdock; that two agreements of adoption were entered into whereby it was understood and agreed that John T. Forsyth and his wife, Jane Forsyth, “would adopt him [plaintiff] as their own son, and promised and agreed that on their deaths he would become entitled to and inherit and have all of the property of which they might be possessed at the time of their deaths”; that in pursuance of such agreement plaintiff was given to the said Forsyths, and that they gave him their name, reared and educated him; that said Forsyths made one or more futile attempts to adopt plaintiff; that John Forsyth died in 1907, but prior to his death conveyed his property to his wife, Jane Forsyth, who died in 1913.

[41 Nev. 305, Page 309]

The answer denies all of the material allegations pertaining to an agreement to adopt and of plaintiff's right to take the property of the Forsyths, and pleads affirmatively that Jane Forsyth, prior to her death, made and executed her last will and testament, whereby she disposed of her property to parties other than the plaintiff, and nominated and appointed the defendant Heward as executor of her estate; that said will had been admitted to probate; and that the defendant Heward had qualified as executor thereof.

1. It is insisted on behalf of defendants that the court erred in permitting the natural mother of the plaintiff to testify in his behalf relative to certain matters and things which transpired before the death of John and Jane Forsyth and pertaining to the contract sought to be established by the plaintiff, upon the ground that such testimony should have been excluded in pursuance of section 5419, Revised Laws, which provides:

“No person shall be allowed to testify:

“1. When the other party to the transaction is dead.

“2. When the opposite party to the action, or the person for whose immediate benefit the action or proceeding is prosecuted or defended is the representative of a deceased person, when the facts to be proven transpired before the death of such deceased person.”

This court, in Torp v. Clemons, 37 Nev. 483, 142 Pac. 1115, in considering a very similar question, laid down what we believe to be a sound doctrine, and one which must guide us in determining the question now before us. In that case, in determining the propriety of admitting testimony of a witness as to transactions between himself and a deceased person, it was held that the following elements must concur and be apparent:

“First, the witness must belong to a class which the statute renders incompetent; second, the party against whom the testimony is to be offered must belong to a class protected by the statute; and third, the testimony itself must be of a nature forbidden by the statute.”

[41 Nev. 305, Page 310]

The question, then, is: Does the testimony admitted in evidence violate the rule enunciated? Plaintiff's mother was permitted to testify to numerous circumstances which transpired prior to and after the plaintiff went to live with the Forsyths, in which the Forsyths played a part, all tending to establish the alleged contract of adoption, and among such testimony was evidence to the effect that, at the request of the Forsyths, she went with them and the plaintiff to a notary public to have adoption papers prepared, and was informed by the notary that such papers would have to be prepared by another. We think the court erred in not sustaining an objection to this testimony, for the reason that the witness testified squarely to a circumstance growing out of an alleged request of the deceased parties, who are dead and cannot give testimony concerning the same, or as to that which it is contended transpired as a consequence thereof.

2. Error is also assigned to the ruling of the court upon an objection to certain testimony given by the natural father of the plaintiff concerning certain acts and conduct of the Forsyths when they went to the house of the witness to get the plaintiff, tending to establish plaintiff's cause of action. Testimony of this character is as much a violation of the letter and spirit of the statute as to permit testimony of what was said by the deceased parties. It is an old saying that, “Actions speak louder than words,” and it was clearly error on the part of the court to permit one of the parties to the alleged contract to testify to anything which transpired between the parties tending to establish plaintiff's cause of action, in view of the fact that the other parties were dead.

3. It is next contended that the evidence does not sustain the judgment. From a careful reading of the record we are of the view that the trial judge, in his written opinion, stated the evidence as strongly in favor of the plaintiff as it will permit, and hence we quote at

[41 Nev. 305, Page 311]

length all that is contained in that opinion relative to the evidence in the case. It reads:

“In September, 1885, when the first contract was entered into, as alleged in the amended complaint, the custody of the plaintiff was surrendered by his mother to John F. Forsyth and Jane Forsyth, his wife, in whose custody he remained continuously, except during the period he was with his father. It was while he was in the custody of his father in 1890, at Reno, Nevada, the second alleged contract was entered into, and the custody of the plaintiff was surrendered by his father to John F. Forsyth and Jane Forsyth, his wife, in whose custody he remained. John F. Forsyth died on February 6, 1907, but prior to his death he conveyed all of his property to Jane Forsyth, his wife. Jane Forsyth died on April 26, 1913, leaving a last will and testament, which has been admitted to probate in this court, in which no provision was made for plaintiff, and the said Jane Forsyth bequeathed to other parties the property that came to her from her husband, the said John F. Forsyth.

“The evidence in this case shows that John F. Forsyth, Jane Forsyth, his wife, plaintiff, and his mother called to see Richard Martin, when plaintiff was very small, with reference to having adoption papers prepared and both of the Forsyths stated to him they were there for the purpose of adopting the boy; that his mother gave him to them to adopt, as they had no children of their own, and called the boy theirs.

“H. Lund testified the Forsyths said they took the boy to raise; that they took to adopt as their own.

“H. R. Brown testified Mr. Forsyth introduced plaintiff to ...

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