191 Iowa 1210 | Iowa | 1921
I. Both parties having appealed, the proponents will be referred to as “appellants,” and the contestant as “appellee.” The appellee is the son and the appellants are the nieces of the testator.
The testator, Samuel Armstrong, came from Ohio some time in the. 70’s and located on a farm near West Branch, Iowa. His wife died .in 1871, leaving the appellee, who is now about 53 years of age, as her only child. The testator never remarried. The appellee and his father for many years carried on business together, owning a considerable amount of real estate and personal property; and, at the time of the death of the testator, the father and son together had property of a net value of approximately $100,000. The testator was a lover of fine horses and a devotee of race tracks, having owned as high as 70 head of race horses at one time. The business, however, does not appear to have been profitable, at least from the standpoint of the owner of the horses.
The appellant Alice Armstrong went to live in the family of the testator in 1879, and kept house for the testator for 22 years. The appellant Ruth Etta Struble came to the Armstrong home in about 1885, and remained there until she was married, in December, 1897. The appellee was married at a time when both of the appellants were living in the family; but, shortly after his marriage, the appellee and his wife moved into another house on the premises.
During the last three or four years of his life, the testator lived more or less at the Struble home, and was there in May, 1917, when the will was executed. By the terms of the will, $1,000 i§ bequeathed to the appellant Alice Armstrong, $3,480 to the appellant Ruth Etta Struble, and all of the remainder of the estate is given by 'the terms of the will to the appellee. The will was executed on May 1, 1917, and the testator died on January 21, 1919. At the time the will was drawn, no one was present with the testator except the scrivener who drew the same. He was a business man, who had known the testator for many years. Regarding the making of the will, he testified that the testator told him that he would like to make a will, and wanted him to write it; that he talked of how he would like to dispose of his property; that he told him that, at the time Ruth
About two months before the execution of the will, the testator joined with the contestant in executing a note and mortgage of $10,000. After the death of the testator, the contestant filed an application for the admission of the will to probate, which he subsequently withdrew, and filed a contest.
The only ground of contest in the case is on the claim of mental incapacity on the part of the testator.' A large amount of evidence was offered by both parties on this question, and it will serve no useful purpose for us to set it out in detail. The evidence of numerous witnesses, including one expert, ip behalf of the appellee tended to show a want of mental capacity on the part of the testator; while, on behalf of the appellants, a large number of witnesses, including the attending physician, testified that the testator was of sound mind. On the whole, the evidence discloses the not unusual situation of an old man afflicted with physical ailments and affected with eccentricities and peculiarities. The deterioration incident to old age is apparent.
The sufficiency of the evidence to sustain the verdict of the jury is challenged on this appeal. In view of the fact that we
Y. On direct examination, the appellee testified in his own behalf that the appellant Alice Armstrong kept house for his father during a period of 21 or 22 years. On cross-examination, testified .
i. Witnesses : transaction with. deceased: opening door to testimony, < ‘ came to our house and kept house L there for 20 years. That was all the settlement that was ever made that I know of. ’ ’
On redirect examination, he testified:
“We paid for Alice Armstrong’s-clothing and support during all the time she was at our home, and she got milk cheeks and egg money for her own. ’ ’
On redirect examination, the witness also testified that, excluding anything he may have learned from any talk with his father, he knew that his father did not owe Alice Armstrong any such money.
After this testimony in behalf of the appellee, the appellant Alice Armstrong was asked this question:
“Did you ever receive any pay for the 22 years you worked and kept house for Mr. Armstrong 1 ’ ’
It was objected that the witness was incompetent, under Section 4604 of the Code. Objection was sustained.
"We have repeatedly held that Section 4604 of the Code prohibits a witness from testifying in denial of a personal transaction with decedent, as well as in affirmance of such transaction. In re Estate of Brown, 92 Iowa 379; Tucker v. Anderson, 172
The testimony of the appellee to the effect that “we paid for Alice Armstrong’s clothing and support during all the time she was in our home, and she got milk checks and egg money for her own,” opened the door for the appellant to testify in respect to whether she was so paid for the labor she performed at the home of the testator. By using the term “we paid,” the appellee could have referred, under the circumstances, to no one but himself and his father; and the appellant was entitled, in rebuttal, to testify whether she did receive such pay. As bearing on this question, see Bailey v. Keyes, 52 Iowa 90; Ridler v. Ridler, supra.
The objection should have been overruled.
VI. Error is predicated upon the ruling of the court, overruling objections to the testimony of the appellee in regard to the payments on a certain note. The objections were properly overruled. The questions did not involve transactions with the testator, and the witness was not disqualified to testify, under Code Section 4604.
VII. It is strenuously contended that the court erred in overruling the appellants’ motion fo» a continuance. As we reverse the case on other grounds, and the question is not likely to arise upon a retrial of the case, we do not deem it necessary to determine the question.
VIII. Following our ruling in McElfresh v. McElfresh, 186 Iowa 994, the trial court taxed the costs of the case to the estate of the decedent. Because of the reversal of the cause, the order taxing the costs will be vacated and set aside, and the matter left for the determination of the trial court if the question should arise in the further progress of the case, as the situation may then appear. Costs in this court will be taxed to appellee.