01-2533 In re the Estate of June Ann Christopherson

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“In this case Neugart is neither seeking to testify on her own behalf or interest to the transaction with Christopherson concerning the bank accounts, nor is Jameson a person who derives her interest from Neugart. Therefore, we conclude the statute does not prohibit Neugart’s testimony regarding her conversations with Christopherson.

“Neugart’s position is that she may invoke the statute to prevent herself from being called adversely. However, the phrase in the statute beginning ‘unless such opposite party …’ plainly contemplates that the opposite party-in this case, Jameson-waives the ability to disqualify the witness-in this case, Neugart-by first introducing testimony in her (Jameson’s) own behalf concerning the transaction or communication with the decedent. This phrase means that, if counsel for the opposite party questions the witness as to any part of the transaction or communication with the deceased under circumstances where the witness would be incompetent to so testify if proper objection were made under sec. 885.16, Stats., the benefit of the statute is waived and the door is opened whereby counsel for the party may proceed by further questioning to bring out all details of the particular transaction or communication. Johnson v. Mielke, 49 Wis. 2d 60, 71, 181 N.W.2d 503 (1970), and cases cited therein; see also Keller Implement Co. v. Eiting, 52 Wis. 2d 460, 467, 190 N.W.2d 508 (1971). This ‘well-recognized principle,’ Johnson, 49 Wis. 2d at 71, is flatly inconsistent with Neugart’s position that she is disqualified by the statute even if Jameson chooses to question her adversely.”

Affirmed in part, and reversed in part.

Recommended for publication in the official reports.

Appeal and Cross-appeal from orders of the circuit court for Adams County, Wolfe, J., Vergeront, P.J.

Attorneys:

For Appellant: James G. Schernecker, Madison

For Respondent: Fred D. Hollenbeck III, Mauston; Charles A. Pollex, Friendship