#### Currie and another, Respondents, vs. Michie, Executrix, Appellant.

*October 18*

November *15, 1904.*

*Estates of decedents: Claims: Trial by court: Findings: Evidence: Fraud: Duress: Compounding felony: Appeal and error: Witnesses: Transactions with person since deceased: Husband and wife: Material error.*

*1.*In an action on a claim filed against a decedent’s estate the evidence, stated in the opinion, is *held*to fail *to*establish fraud or duress, or that consideration for the claim was the compounding of a felony.

'2. In an action tried by the court, the improper admission of evidence is not available as error on appeal.

3. In such case, it is sufficient that evidence properly admitted supports the findings.

4. Where a party is called under sec. 4068, Stats. 1898, as an adverse witness and examined as to transactions and communications had with a person since deceased, in respect to such matters, the examination opens the door to the admission of the testimony of the adverse party.

5. Where a married woman is a party in the capacity of an ex--ecutrix, it is not error to exclude the testimony of her husband, who was offered as a witness generally in the case and not as her agent.

6. In an action tried by the court, it is not material error to refuse to strike out testimony that is without probative farce, or to sustain objection to a question calling for nothing material to the issues in the case.

*121Appeal from a judgment of tbe circuit court for Milwaukee county: LaweeNce W. Halsey, Circuit Judge.

*Affirmed.*

It appears from the record that William S. Eraser died testate July 22, 1899; that his will was admitted to probate, and his daughter, *Isabelle Miehie,*was duly appointed as executrix of the will; that October 31, 1899, the firm of Currie Bros, presented a claim against the estate for $1,000, with interest at seven per cent, from May 1, 1894 — the same being the balance due on a note of $1,774.75 executed by the deceased August 28, 1893, and upon which had been paid hy the deceased $858.61, leaving the balance mentioned. The executrix objected to such claim on the ground that it was given without consideration, and that said deceased was induced to sign said note by fraud and duress, and threats of 'Currie Bros, that unless he gave the same they would prose•cute his son, James A., for embezzling upwards of $4,000 while he was in their employ. The executrix also answered by way of counterclaim to the effect that at the time of giving said note the said deceased was-induced by fraud, duress, ■and such threats of prosecution to surrender to Currie Bros.a duebill executed by them August 31, 1887, and for which •she claimed $2,225.25, and also the $858.61, so paid on the ■note of $1,774.75. Currie Bros., by way of reply, put in issue the allegations of the counterclaim. The county court allowed such claim of Currie Bros., and on appeal to the cir■cuit court the cause was tried therein *de novo,*and at the close of the trial the court found, in addition to the facts ■stated, as matters of fact, in effect: (1) That prior to Eeb-'ruary 3, 1893, James A. Eraser became indebted to Currie Bros, in a sum exceeding $4,000 of their moneys taken by him while in their employ without their knowledge or con•sent. That upon the discovery of such embezzlement by Cur-Tie Bros, on the day and year last named, and confronting James A. Eraser with the fact, he admitted the same, and *122proposed to pay wbat be could realize upon tbe sale of certain lots, and secure tbe balance, and for tbe purpose of securing tbe same be obtained from bis father and delivered to-Currie Bros. Exbibit 2, which reads:

“Milwaukee, February 10th, 1893.

“I hereby stand security to tbe amount of $1,000.00 for J ames A. Fraser to tbe firm of Currie Brothers ¡lending examination of their books, tbe said examination to be completed as soon as possible.

“[Signed] William S. Feasee.”

There is written across tbe face of this instrument: “Returned and canceled August 28th, 1893, as per agreement of that date.” And that, in procuring tbe same, Currie Bros, bad no communication with the deceased relating to such claim against James A. Fraser, and made no threat of prosecution to him or to James A., and James A. in no manner led bis father to believe that be was liable to be prosecuted for such embezzlement, and that tbe deceased executed Exhibit 2 freely and voluntarily as such security. (2) At tbe time of giving Exhibit 2, Currie Bros, were indebted to tbe deceased on tbe duebill mentioned, signed by- them August 31, 1887, for $2,150 with interest at seven per cent., no part of which bad been paid, except a portion of the interest. (3) August 28, 1893, there was due to the deceased from Currie Bros, on that duebill, for principal and interest* $2,225.25, and that upon tbe last-named day and year Currie Bros, and tbe deceased met, and settled and agreed upon $4,000 as tbe amount which, pursuant to Exhibit 2, tbe deceased should pay to Currie Bros. That, as a part of such-payment, tbe deceased was to surrender to Currie Bros, tbe duebill, and that tbe amount then due thereon of $2,225.25 should be deducted from tbe $4,000, leaving a balance for which tbe deceased then and there gave bis note of $1,774.75 to Currie Bros., payable May 1, 1894, 'and that such settlement was tbe free and voluntary act of tbe deceased without *123any fraud, duress, or compulsion. (4) May 9, 1894, tbe deceased freely and voluntarily, and without fraud, compulsion,, or duress, and without any threat or promise, paid to Currie Bros, upon said note $858.61, leaving the balance of $1,000: so filed as a claim against the estate of the deceased. (5) No other payment has ever been made upon said note, and there-is due thereon $1,000, with interest at seven per cent, froim May 1, 1894. (6 and I) The allegations in the answer to-the effect that the note was given by the deceased without consideration and by fraud and duress are not proven, and are-not true. (8) The allegations of the counterclaim are not proven, and are not true.

As conclusions of -law the court found, in effect, that Cur-rie Bros, are entitled to judgment against the estate of the-deceased for $1,000, with interest thereon at seven per cent.. from May 1, 1894, and their costs and disbursements in this-action, and also’judgment dismissing the counterclaim alleged in the answer, and ordered judgment accordingly.From the judgment so entered, the executrix brings this appeal.

*John 8. Maxwell*and *Joseph B. Doe,*for the appellant.

For the respondents there was a brief by Turner, *Pease*dr Turner, and oral argument by *W. J. Turner.*

Cassouat, C. J.

It is undisputed that James A. Fraser-was in the employ of Currie Bros. February 3, 1893, and had’ been for some years. On or about that date Currie Bros, discovered that James A. had for some time been appropriating; their money to his use, without their knowledge or consent,, to the extent of $4,000 and upwards. When confronted with-the fact of such discovery, James A. admitted that he had so-converted the moneys of the firm to his own use to the extent 'mentioned. James A. was at the time about thirty-three years of age, and his father was about seventy-seven years of’ age. He was told by Currie Bros, that they wanted their-*124money back or security, and they finally agreed that, if James .A. would give them security for $4,000, it would be satisfactory. James A. thereupon went to bis father and told him .the circumstances, whereupon his father told James A. to write out a paper, and he would sign it; and he then wrote 'Exhibit 2, dated February 10, 1893, set forth in the statement of facts, and called the “guaranty,” and his father then .signed it, and James A. delivered it to Currie Bros, the next day, or within a day or two, as stated in the findings. 'There is no claim nor pretense that the deceased did not sign that guaranty freely and voluntarily, and without any fraud, •duress, or threat of prosecuting James-A. by Currie Bros. The same is true as to the $4,000 note which the evidence on -the part of the plaintiffs tends to prove was about the same time drawn up by James A. at the house of his father, and -then signed or indorsed by himself and his father, and then 'by him delivered to Currie Bros., and by them subsequently lost. The defendant denied the existence of any such note, and the findings fail to determine the question, but its de--tennination does not seem to be very material.

The important question upon which the case must turn is whether the settlement of August 28, 1893, was valid and binding upon the deceased. There is certainly strong evi•dence tending to prove that the deceased was induced to make -that" settlement to prevent Currie Bros, from instituting criminal proceedings against James A. on account of such embezzlement. Such evidence is to the effect that about a month prior to the settlement *James Currie*called at the house of the deceased, and went upstairs and into his bedroom, and remained there with the deceased about an hour, with the door ■■closed, and during the time talked in a loud and excited manner about James A. and security, which was heard by those •outside, and that when *James Currie*left the bedroom he •came down stairs alone, and passed out without speaking to .-any one. After the discovery of the embezzlement, Mr. Moses *125IT. Brand, an attorney at law, was employed by tbe deceased' to investigate tbe matter; and be testified to tbe effect tbat a-, short time before tbe settlement be was told by Currie Bros., tbat, if tbey could not get tbeir money back, tbey would insist upon having criminal action against James A.; tbat the-parties met at bis office pursuant to agreement to make such settlement August 28, 1893; tbat at tbat time *James Currie■*and tbe deceased, after some talk, arranged tbat tbe deceased' should surrender to Currie Bros, tbe duebill be held against: them, of $2,150, which, with tbe interest, then amounted to-’ $2,225.25, and give to Currie Bros, bis note for tbe balance-of tbe $4,000, which amounted to $1,774.75; tbat be then drew tbe note which was signed by tbe deceased, and at the-request of tbe deceased he drew tbe contract or receipt, to the-, effect stated, and also stated:

> “In consideration of the above payment it is -understood' and agreed that criminal proceedings will not be instituted by us against said James Eraser for tbe above or any-other-amounts of money taken by him or for any other sum of" money which may have been taken by him.”

Tbat be then added at tbe suggestion of *Mr. Currie*a proviso to tbe effect tbat, if tbey should thereafter discover that' James A. bad wrongfully taken from them any sum in excess-of tbe $4,000, then he was to give them bis note therefor,.. and, if he should refuse, then nothing therein should prevent them from taking criminal action against him; and tbat the-language of the paper was bis own. Such agreement bears-date August 28, 1893, and is signed, -“Currie Brothers per *James.”*After a good deal of hesitancy, *Mr. Currie*virtually admits tbat bis signature to tbe paper is genuine, but claims-that be signed it without knowing its contents, and denies-that there was any understanding that they were to refrain from prosecuting James A. Tbe court refused to find whether such written agreement was in fact made. It is difficult to believe tbat *Mr. Currie*did -not know tbe contents o£ *126the paper when he signed it, and yet there is no evidence that 'he read it or that it was read to him before he signed it, nor •that the agreement not to prosecute, contained in the'writing, •was made in pursuance of any parol agreement or understanding between the deceased and Mr. Currie. Mr. Brand testified that it was impossible for him to give the details of the -conversation between *Mr.*Currie, Mr. Eraser, and himself •on that occasion. Of course, it was possible for *Mr. Currie*to believe that the paper he signed was a mere memorandum of the surrender of the one note and the giving of the other. Mr. Brand was a lawyer, and necessarily knew that no valid •contract or agreement to compound a felony could be made. 'The deceased executed his will July 31, 1894, about eleven ■months after the settlement in question, and nearly three months after he had paid $857.86 on the note of $1,774.75. Mr. Brand was a subscribing witness to the will, and pre-sumably wrote it, since he was the attorney and counsel for ;the deceased. And yet that will contained this clause:

> “Having advanced to or paid for my son James Eraser large sums of money I purposely and intentionally omit making any devise or bequest to him and'do intend and desire that 'he shall not receive any part or portion of my estate.”

This manifestly refers to the $2,225.25 and the $857.86 -so paid by- the deceased for the benefit of his son J ames A. *Mr. James Currie*is corroborated in some particulars by -other witnesses — especially by J ames A. Eraser. The transaction took place nearly ten years before the trial. The ■county court and the circuit court saw and heard all the witnesses, and hence those courts were each in a much better ■position to judge of the credibility of the witnesses than this -court. The claim of Currie Bros, against the estate of the deceased was allowed in both courts. In view of all the cir•cumstances, we cannot say that the findings of the trial court .are against the clear preponderance of the evidence. In reach*127ing this conclusion, we have confined ourselves to the competent evidence in the record.

Several errors are assigned for the improper admission of ■evidence, and for the refusal to strike out testimony. The rule is well established that in a case tried by the court, as here, the improper admission of evidence is not available as •error upon appeal. *Wolf v. Theresa Village M. F. Ins. Co.*115 Wis. 402, 405, 91 N. W. 1014, and cases there cited. If the evidence properly admitted supports the findings, it is ■sufficient. Id.

Error is assigned because the court permitted *James Cur-rie*to testify to transactions and conversations with the deceased when no one else was present, and for refusing to strike out such testimony. But it appears from the record that the defendant first called and examined him, under sec. 4068, Stats. 1898, as an adverse witness, and on such examination he had testified to the effect that he saw the deceased in regard to the embezzlement a few days prior to August 28, 1893, at his own house, and also at the house of the deceased, when they arranged to meet at Brand’s office, and that they met pursuant to that agreement, and that the purpose of the meeting was to adjust this embezzlement matter — to make a settlement which was afterwards made — and he was further asked and answered the question whether he ever promised the deceased that he would not prosecute his son. By such examination the defense opened the door, under sec. 4069, Id., for the admission of the testimony to which objection is now made.

There was no error in excluding the testimony of the defendant’s husband, who was offered as a witness generally in 'the case, and not as the agent of his wife.

The witness Campbell, after testifying at length as to his acquaintance and conversations with the deceased, and as to the trouble of the deceased with Currie Bros., and as to his *128disposition, habits, and conduct, stated that on one occasion,, after *Qurrie*bad passed by on tbe street, tbe deceased said he did not speak to them at all, and thereupon tbe witness asked him as to what was tbe matter. Error is assigned because tbe court sustained an objection to tbe question, and refused to-strike out such declarations of tbe deceased. We perceive no reversible error in such rulings. Tbe testimony sought to be-stricken out is all before tbe. court, and is without probative-.force. Tbe unanswered question called for nothing material to tbe issues in this case.

*By the Gourt.*— Tbe judgment of tbe circuit court is affirmed.