dissenting in part, and concurring in the conclusion.
I concur in the conclusion that the court should adhere to the judgment heretofore rendered.
1. While the cogent argument contained in the majority opinion is strong, it appears to me that it might be still stronger and absolutely conclusive if it contained all of the material facts in the case, some of which, no doubt, are left out by inadvertence.
2. I am not satisfied that William J. Holladay, the plaintiff’s husband, was disqualified to testify as a witness under section 329 of the code. I therefore dissent from so much of the opinion as holds that he was disqualified. Under the present decedent law, the plaintiff’s husband had no direct legal interest in the result of the action, as the contingency by which he might possibly become entitled to the use of the land, or have an heirship in it, had not arrived. His wife was then living. And there is a waiver of the protection offered by section 329 *501because of the introduction of witnesses by the defense who testified as to the transaction and as to what was said by the neighbors and by Dr. Badger himself. When the defendant shows part of the transaction, the whole may be shown by the plaintiff. American Savings Bank v. Harrington, 31 Neb. 598; Parrish v. McNeal, 36 Neb. 727; Bangs v. Gray, 60 Neb. 157. See, also, Dodd v. Skelton, 2 Neb. (Unof.) 175; McCoy v. Conrad, 64 Neb. 150; Williams v. Miles, 68 Neb. 163. As the effect of the section, if given a literal interpretation, is to cut the court off from the evidence showing the facts, the rule should not be applied unless it is strictly required by a reasonable interpretation. In Parker v. Wells, 68 Neb. 617, it was held that a wife might testify in favor of her husband in relation to conversations and transactions had with a person since deceased in all cases, except where.the result of the suit, if favorable to the husband, would invest her with some direct legal interest in the subject of the controversy, and it was held that a dower interest did not disqualify her. This rule is seemingly analogous to that which ought to be in force in the present case.
3. I dissent from so much of the opinion as finds that Dr. Badger was not using a narcotic. One witness, Oscar Babcock, saw him every day, and testified that the doctor told him he could not keep up without medicine, and that the doctor said to him: “I can’t leave it alone, I can’t live without it.” He also said that he used the purest article that he could get; that he did not buy it in town; that he could get a better article by sending away for it; that he bought f! worth at one time; that he said: “I can’t keep up without it.” A number of witnesses testified that he failed to recognize his nearest neighbors'; that he would meet them and say “I don’t know you”; that he got very bad physically; that he would say, “I can’t call your name,” and then, when the man told him his name, he would not be able to place him; that he gradually became weaker, and at times was seemingly unconscious of his surroundings; that he imagined there was something *502the matter with the chimney when there was nothing the matter with it; that he gave away his library, and wanted to give away his household goods and furniture; that he gave the preacher, M. B. Kelly, his horse and buggy; that he seemed dazed, and would commence to run, and that he would then catch hold of a telephone- pole.near his house to prevent himself from falling; and, in the language of Mary B. S. Badger, he became very nervous and forgetful, and was unable to remember “while he was turning around.” In another letter she describes the doctor as “not fit to do business of any kind.” And again “I can see his memory fail every day. * * * There is no question but what his brain is bad and heart also.” It is apparent that he used something that was expensive. It was a drug that he sent away to get. He said that he could not keep up Avithout it. The evidence seems to justify a finding that it was a narcotic.
4. I dissent from so much of the opinion as fails to find that the deed to William Henry Rich and the donation of the notes and mortgage to the college were obtained by the undue influence of William Henry Rich, Mary B. S. Badger, and M. B. Kelly, the preacher.
Dr. Badger was frail, and his mental power was much reduced by illness and old age. He Avas frequently ill, and he was beyond 80. The step-mother of the plaintiff had a direct interest in the conveyance of the land to Rich and the donation to the college. She became a beneficiary by that transaction, because after her husband’s death she was to receive the interest. In vieAV of the doctor’s weak condition, his probable habits as to the narcotic, and Avith these strong and designing people around him, there was plenty of evidence, as it seems to me, to fully justify the conclusion of undue influence. At the time of the execution and delivery of the deed to .the defendant Rich, Dr. Badger was extremely feeble, very infirm in his body, and. hazy and uncertain in his mind, and also a.t the time that he delivered the notes and mortgage to the defendant Milton College, through M. B. Kelley, the traveling preacher. *503Kelly wrote to the president of Milton College: “You will doubtless be agreeably surprised to find it (the donation) $8,000 instead of $5,000.” He wrote the president at another time: “Hoping this will all be satisfactory to yon and rejoicing in the privilege of bearing even a very small part in this worthy transaction, I remain very sincerely yours, M. B. Kelly.” When examined about the matter of the donation, he said: “This correspondence with Milton College in reference to acceptance of this donation and what they would do nearly all transpired through me.,} Kelly seems to have been there when the notes and mortgage were made to Milton College. When he had received the notes and mortgage, he sent them to the college.. He was proud of what he did. Milton College gave nothing for the mortgage and notes except a guaranty that the interest would be paid, and, of course, if Rich paid the interest, as he promised in the notes that he would, then the college would be out nothing. William Henry Rich knew Dr. Badger, and was farming the land. He was helping to keep the plaintiff from coming into her own. While he was not called as a witness, his deposition was taken in support of plaintiff’s motion for a new trial, and in that deposition he describes the execution of the deed to himself at Dr. Badger’s house, and the delivery to the doctor of the mortgage. At that time Rich testified that the doctor had told him that he had given the Holladays a deed, and that he had written to have it sent back. He therefore knew that the deed had been delivered, and whether that fact appeared from the deposition or from testimony taken at the trial proper was immaterial, as it was one of the things properly before the court'to be considered by it. Rich knew that he was a party to this questionable transaction. Mary B. S. Badger and M. B. Kelly each knew the transaction was questionable.
Of course, it is always a worthy object to aid a school or college, but T believe the blame should be placed where it belongs. Mary B. S. Badger, the step-mother, William Henry Rich, who received the deed for the land and who *504made the notes and mortgage, and M. B. Kelly were all in it, and they are all responsible for the wrong done, while the college is merely called upon to give up something for which it paid nothing. Mary B. S. Badger, the stepmother, William Henry Rich, the purchaser of the farm, and M. B. Kelly were all interested in persuading this frail old man to forget his daughter and his duty. I have not observed anything said in the majority opinion touching the father’s statements, made from time to time to the neighbors, that the improvements on the farm were for the daughter, or that he joined her name with his as one of the lessors of the land in crops. At least three witnesses describe these improvements, and what the father said about everything being for his daughter Kate (Mrs. Holladay). I have not observed that anything-is said in the opinion about the- daughter (Mrs. Holladay) going home from Kansas City to North Loup in August, 1904, to take possession of the farm, as she had agreed to do, and when she got there finding that her father claimed that he had rented the farm the day before to the defendant Rich. Mrs. Holladay then had her daughter with her when she went up there ready to go ahead with the arrangement made to farm the land and take care of the old folks; but, as they could not get - possession of the land, they went back to Kansas City. The step-mother, Mary B. S. Badger, and the defendant Rich were active in this. The omitted facts show undue influence. There can be no doubt about it under the law. In re Estate of Paisley, 91 Neb. 139; In re Estate of Frederick, 83 Neb. 318, 321; Orchardson v. Cofield, 171 Ill. 14, 40 L. R. A. 256, 63 Am. St. Rep. 211.
I refer to the former opinion of this court (Holladay v. Rich, 92 Neb. 91), because it contains a fuller and more complete discussion of the facts than I am able to give in this brief review.