164 Iowa 257 | Iowa | 1914
On the 12th day of October, 1907, J. H. Bales, resident of Hardin county, executed his last will and testament in which, after providing for the payment of his debts and funeral expenses, appears the following provisions:
II. I give, grant, bequeath and devise unto my wife, Sarah E. Bales, in lieu of dower, the one-half in value of all the property belonging to my estate, real, personal, and mixed, of which I shall die seised and give unto her the right to select from my estate what particular property shall vest in her by virtue of this bequest..
III. I give and bequeath unto James G. Bales, being the boy raised by me and now a resident of Hardin county, Iowa, the sum of ten thousand dollars and direct that said sum shall draw interest at the rate of four per cent, per annum from the time of the admission of this will to probate until the same is paid to the said James G. Bales, and direct that said sum shall be paid out of my estate by my executors within
IV. I give, grant and bequeath unto W. J. Murray, of Eldora, Iowa, in trust, as trustee only, the rest and residue of my estate with full authority and power upon the part of the said W. J. Murray to invest and reinvest the said portion of my said estate as he, the said W. J. Murray may think advisable from time to time and shall deem for the benefit of the said trust estate and direct that the said trustee shall, from time to time pay over to my said wife at intervals of not less than one year, the net income derived from the said portion of the said estate during the natural life of the said Sarah E. Bales, and I authorize and empower the said W. J. Murray, if by him deemed to be to the best interest of the said trust estate to make sale of any portion of the said estate which shall come into his possession by virtue of this bequest without first making application for authority therefor to the court.
V. At the time of the death and departure from this life of my wife, Sarah E. Bales, I direct that there shall be paid out of. the residue of the said trust estate by my said trustee, W. J. Murray, the sum of five hundred dollars, to Lula S. Trout, daughter of B. B. and Jennie Trout, and one thousand dollars to Henry Bales, my nephew, a son of John L. Bales.
VI. I further direct that after the payment of the said two legacies provided for in the last preceding paragraph of this will that the residue and remainder of said trust estate shall vest as follows: The one-third to become the property of the said James G. Bales referred to in the third paragraph of this will; one-third to my friend W. J. Murray, and the remaining one-third to be equally divided between my two brothers, John L. Bales and 'W. S. Bales, and in case of death of either of the said John L. Bales or W. S. Bales prior to said distribution, then and in that case, the portion of the estate which should have gone to either of the said parties, John L. Bales or W. S. Bales, shall be paid to the legal heirs of the party whose death has thus occurred prior to such distribution.
VII. Finally I nominate and appoint as executors of this
On the 19th day of December, 1911, the said J. H. Bales departed this life. On the 21st day of December, 1911, the foregoing instrument was filed with the clerk of the district court of Hardin county as the last will and testament of the said Bales. On the 19th day of January, 1912, the appellants herein, W. S. Bales and J. L. Bales, brothers of the testator, filed written objections to the probate of the will, urging: First. That the said J. H. Bales was not, at the time of the execution of the said instrument, of sound and disposing mind, but was incapable of making a will. Second. That the said will was procured and executed by fraud, duress, and undue influence exercised over him by Sarah C. Bales, James G. Bales, and W. J. Murray. A hearing was had on the issue at the Ma-rch term of the district court of Hardin county. At the conclusion of all the testimony, on the motion of proponents, the jury was instructed to bring in a verdict in favor of proponents, and against contestants, and thereupon, an order was made by the court admitting said will to probate, and the same was duly probated as the last will and testament of the said Bales. From this order, contestants W. S. Bales and J. L. Bales appeal.
There was no evidence of any undue influence, exercised over the testator by the parties charged, which induced or provoked, or secured in any way, the making of the will in question, or that can be said to have controlled, or even directed, the mind of the testator in the disposition of his property as therein set out. We are therefore only concerned with the first proposition presented by contestants, to wit, Was J. H. Bales, at the time of the execution of the instrument, of sound and disposing mind and capable of making a will?
It appears from the record that J. H. Bales had no children. The record discloses that he entertained a high regard and a tender love for his wife; that he often, during his lifetime, spoke of her as having been of great assistance to him in securing his fortune, and that he intended to make ample provision for her. In the will this thought is exemplified and emphasized, and, as a good man should, he has made ample provision for her future. In this, there is no evidence of forgetfulness, nor indifference to the tie which had bound
The boy, James G-. Bales, seems to have been next in his consideration. To him a large bequest was made, and why? The record shows .that this boy, commonly called Jimmie, was born in Hardin county; that his father died when he was eighteen months old; that he came to live with J. H. Bales, when he was three years old, and continued to so live until his marriage; that he went through high school in Eldora, the home of the testator, and graduated in 1903. Then he went to Penn College one year. He came back to Eldora and worked in a hardware store for a time, and then went into a store in New Providence, purchased by J. H. Bales ; that he became interested in that store in 1905. On his twenty-first birthday testator gave him a one-eighth interest in the hardware stock, and also one-eighth interest in New Providence Bank, the only consideration there being $1, love, and affection ; that the interest at that time was valued at $1,000; that he continued in the hardware business at New Providence until 1908, until the stock was disposed of; that at the time he was five years old he took the name of Bales, and has ever since been known by that name. It appears that the relationship between Mr. Bales and Jimmie, during all the years that he resided with ‘Mr. Bales, was substantially that of father and son; that in addressing Mr. Bales he called him father. As early as 1905, in conversation with one J. C. Cox, who was a witness in this ease, he said that they were urging him to give money to Penn College, but he did not know what he would do about it. “I expect my wife will have the majority of my property, at least during her life, and we consider Jimmie very much as if he were our own boy. ’ ’ At other times he said Jimmie was a good boy and had never disobeyed him, and he expected to see that he was comfortably fixed, and we gather from the record that he was very fond of
As to the other beneficiary, the record discloses that he also was born in Eldora.; that he had known Mr. Bales since he was a small boy; that he went to work for Mr. Bales in 1892 in the bank; that he did chores for him before that time; that in the spring of 1892. he went to Ames with the expectation of starting to school there, to work his way through; that on his return Mr. Bales asked him to work for him; that he gave up the school, and from that time continued with Mr. Bales; that he worked in the bank as a sort of errand boy, learning the bookwork, in the meantime familiarizing himself with the work until he was advanced to the position of- assistant cashier in 1895. In 1896 he was elected cashier, and remained as such until 1906, when he was elected vice president; that Mr. Bales was president of this bank from the time it was organized until July, 1908; that during the twenty years he was with Mr. 'Bales about the bank he frequently attended private business for him; that there was never any change in their relationship to each other; that in speaking of Mr. Murray, he said: “I don’t know that I could think any more of him if he were my own son. I think so much of him and I expect to remember him when I get through with my property.” On one occasion he said Murray deserved a good deal of credit in the way the business had succeeded, and he felt sometimes as though he had underpaid Murray for his services. In conversation with one J. C. Armstrong, in the spring of 1907, in speaking of both Jimmie and Murray, he said: “I have made provision for Jimmie. We raised him, but he is married, now, and I feel that we ought to make more ample provision for him.” He said that he had taken Murray out of school, and he had been with him ever since.-
One Dr. K'oeneman, as a witness, stated: “I had a conversation with Mr. Bales some time prior to October 12, 1907,
It does not appear that the contestants herein, during all the years of testator’s struggle in the world of business, were in any way associated with him, or that they had any claims upon his bounty except those which might naturally be expected from the ties of blood. It appears that at one time one of these contestants contemplated caring for the mother of J. H. Bales, of whom testator seems to have been very fond; that at the time he made some suggestion to the effect that he would remember him in the disposition of his property. But it seems from the record that the mother never resided with this son after he was married in 1884. Thereafter she continued to live with, and was cared for, by J. H. Bales until her death. This appears to be the only fact upon which he bases his claim to special recognition.
It appears, further, that the visits between the brothers were only occasional, about a year apart. The father of these boys died in 1880, when the contestant, W. S. Bales, was about twenty years of age; that the mother died in 1896; that this W. S. Bales was married in 1884; that the mother never lived with him after he was married. J. L. Bales, the other contestant, was not a witness on the trial.
Upon this branch of the ease, we find nothing in the will, nothing in the disposition made of the property, that would suggest that it was not made by the testator in a full recognition of the obligation, if any, which he owed in the disposition of his property, to those fairly recognized by him as entitled to his bounty. It would rather appear that, in the disposition, he recognized those ties and claims and obligations which a man of ordinary intelligence and rational judgment would have recognized as binding upon him. He gave the property to those to whom he had every reason to be
But it is contended that, notwithstanding the fact that the provisions of the will may seem to be just and equitable and to indicate the action of a normal mind, yet that the evidence which has been offered was such that it was a question for the jury as to whether or not he was, in fact, in possession of testamentary capacity.- The evidence upon this proposition is voluminous. No good purpose would be served in setting it out in detail. We have examined the record carefully, both as it appears in the abstract and amendment to abstract, and we are satisfied that, as to the ultimate fact which the evidence tended to prove, there is very little difference between the witnesses.
Every nonexpert witness .called, who testified as to the mental condition of the testator after and prior to the time of the making of the will, predicated his conclusion that he was not of sound mind almost entirely upon the physical condition of Mr. Bales as it appeared to them. The physical con
Take for example, the testimony of Elkanah Reece, who testified on the part of proponents:
In the spring of 1907 I spoke to Mr. Bales about getting a loan from the Penn College Endowment Fund. I didn’t want the loan until September. He said he thought he could get it all right, but they didn’t have the money on hand at the time. But he said: ‘I guess I can fix it. I can fix it some way. I just don’t see how.’ A minute afterwards he said: ‘Oh, yes, I see how. We can just take some money out of the bank and furnish you the amount you want, and when the endowment fund comes in, we.can replace it in the bank again. I don’t see business as readily as I once did. ’ He said he couldn’t think as quick as he once did. Between that and the last of September, 1907,1 saw him again, and he said, ‘We have the money that you want.’ On the 30th of September, I went up to finish the loan. I found Mr. Bales down home. I told him I was ready to get the loan. He said: ‘I am not going to the bank now. Warran Rathbone will attend to that for you. ’ I think I noticed a difference in his eye. There was a lack of the same ability in his expression. Speech was not prompt, somewhat hesitant. We talked about the loan. He said that he had explained the matter to Mr. Rathbone. The loan was for $5,200, to be secured by a mortgage on a farm of three hundred acres. I discussed the terms of the loan with him. He told me he could furnish me the loan at 5 per cent, interest for ten years. The loan, the land, the rate of interest, and the terms were discussed between us. When I went to the bank, I found Mr. Rathbone had been apprised by Mr. Bales of the terms and conditions of the loan, and I closed it up satisfactorily with him; just exactly as Mr. Bales had agreed.
I had a business transaction with Bales in August, 1907. Traded my house for a farm in Kansas in which he was interested. On my way home with him one day I told him I was going to Kansas to look at a farm with Charlie Ryan. He said he had a farm there, too, not far from the place I was going, and said: ‘If you don’t make a deal, I would like to have you see this farm. I believe we could make a deal. Mr. Ryan knows about the farm, and I will see him and have him show it to you.’ September 1, 1907, I had another conversation with him about it. In the meantime I had been to Kansas. He said, ‘Well, you didn’t make the trade?’ I said, ‘No.’ He asked if I had looked his farm over and I said I had, but I couldn’t quite make the deal. ‘Well,’ he said, ‘come into the back room of the bank. Maybe we can make it yet.’ I told him I had made an offer to Ryan on Bales’ land, and would stand by it. We talked about it some time, and I afterwards concluded the deal and traded my home for the Kansas land.
J. W. Peisen testified:
. I had a transaction with Bales about the 8th of September, 1907, at his bank. At the time the panic broke, I had made a contract for 240 acres of land in Minnesota, and had paid $500 on the contract, and the financial situation frightened me a little. I went to see Mr. Bales about arranging for meeting the proposition, and being prepared to close it on March 1st, that being the date of the settlement on the contract. I went over the facts with' him, and he assured me he would take care of me up to $8,000. He said he would furnish the money for $8,000 above the first mortgage, or he might prefer to take up the first mortgage and carry the $8,000. However, he advised me to dispose of the contract if I could. I had done business with him before, and had taken his advice. I noticed no change in his manner of doing business at that time.
J. A. Johnson testified that he was a depositor in the bank and had done business with Bales.
Charles O. Byan testified:
I talked with Bales about the trade of the Kansas land in 1907 and about other land. I had a deal with him in July, 1907, and he renewed a loan for me of $3,000. Spent a half a day with him on November 5, 1907. He talked about the bank’s shutting down, the Elzig suit, and the Wisner suit. He spoke of being a witness in the Wisner suit. This was before he went to Colfax. He talked the same as he always talked to me. I thought he was sick, but observed no change in his mental condition.
J. C. Armstrong, called as a witness, testified as to business transactions with Mr. Bales during the summer and fall of 1907:
That Bales visited Jimmie at New Providence, and was in the hardware store in which Jimmie was a partner, and
Most of the testimony of the nonexpert "witnesses, touching the mental condition of Mr. Bales, relates to a time several months subsequent to the making of this will. However, all the facts stated on which they predicate mental incapacity, disclose physical weakness; appearance apparently superinduced by physical weakness, rather than by mental unsoundness. We do not pretend to set out all the testimony given by nonexperts, but have set out herein substantially the testimony of those with whom Mr. Bales transacted business at or about the time of the making of the will, and from this itl is made to appear that, however much his physical condition may have been impaired, his mental vigor was not thereby seriously abated up to, and at the time of, the making of the will.
It appears that prior to October, 1907, and some time in February, 1905, Judge Albrook prepared a will for the testator, in which he gave to Jimmie (named in the will in controversy) $5,000 at the time of his death, and $5,000 on the death of Mrs. Bales, and gave to the nephew named in the
I asked him what changes he proposed to make. He said he intended to change it so that Jimmie would not have to wait until Mrs. Bales’ death to get the second $5,000; that he wanted Jimmie to have $10;000 at the time of the settlement of the estate; that he wanted to give his nephew $1,000 in place of $500. I said to him then: ‘This can be done by making a codicil, but I don’t like a codicil very well. Sometimes it leads to controversy. Your will is not very long, and you might have it re-written.’ He then went out of the office and afterwards came back with the will in question written out in his own handwriting, and submitted it to me and said, ‘What do you think of that?’ I looked it over and said I thought it was all right. ‘Well,’ he said, ‘it don’t look very well. I think you better have the girl copy it. ’ It was then turned over to one of the girls in the office and copied. He came afterwards and took it out. At the time he made the change in his will, October, 1907, I saw the will he had made, in February, 1905, and I saw the changes which were made by the will of October, 1907.
It appears that Mr. Bales, for some time after making the will, was president and director of the bank and active in its management; that he was guardian of the Wisner estate, acted as treasurer of the board of trustees of Penn College, and up to the time of the financial crisis of 1907 he talked intelligently about the condition of his bank, and gave reasons why he believed that the bank would not be financially embarrassed by the panic; that he attended a meeting of the bankers of Hardin county in the latter part of October, or the first part of November, 1907, and took part in the discussion. This meeting was called for the purpose of determining what the bankers of Hardin county should
Expert witnesses were called to testify as to the mental condition of the testator. One Dr. Getman testified that he had seen him frequently upon the streets; that he observed him; noticed his health was failing in 1906 and 1907; that Bales often passed him on the street without speaking to him. Witness thought he did not recognize him. As far back as 1907 he noticed that he was nervous and in ill health, and did not converse with his usual ability. This was prior to the making of the will; that he met him afterwards at Colfax in March, 1908; that in conversation, he did not pursue the subject to the end, but frequently changed from one subject to another. However, he testified that he knew he did business in 1907, but he had no business transactions with him, and could not say whether or not he had sufficient mind to comprehend his property, recognize his family, or had correlative ideas between his property and property rights and his family and family rights; that he never talked with him on these subjects; that he could not say whether he had sufficient mental capacity to have an understanding of his property and its value, and yet he testified that, in his judgment, he was unsound of mind on October 12, 1907.
Dr. Turner, with whom testator stayed at Colfax, said he met Bales first November 14, 1907, at the sanitarium. Stayed there until about February 21st, and was treated. His trouble was arterio sclerosis. When he came there, he was physically and mentally worn out. He was irritable, restless, and forgetful. He would sometimes lose himself and forget where he was going and where he belonged. From the time he came until he left he was gradually growing
Mr. Bales told me he was having some trouble about a lawsuit. He was worrying about it naturally. I was not surprised that he got turned around in Colfax. Many people do on account of the way it is laid out. He paid me for my services by cheek signed by himself. I do not remember any statement made to me when Mr. Bales was there that was not a rational statement. He did not like the place. Mr. James Bales and his wife were down to see him several times. Mr. Murray and Judge Albrook were down to see him on business. I told Judge Albrook that Bales was able to talk with him on a business matter, and would be able to go over any business proposition. I thought he was able to do business to a certain extent. I think he was able to do business at the time to the extent of realizing property and its value. This was about the 1st of April, 1908. Unsoundness of mind is in various degrees. It may be slight, or such as disqualifies one from doing business. The subject may be able to transact the ordinary affairs of life. I think at that time he could comprehend ordinary business transactions.
Then he was asked these questions, and made the following answers:
Q. Assume that Mr. Bales on October 12,1907, had before him an instrument in writing, one clause of which read as follows: ‘I give and bequeath unto James G. Bales, being the boy raised by me and now a resident of Hardin county, Iowa, the sum of $5,000.00. ’ Do you think from the examination of Mr. Bales that he would know at the time who James G. Bales
Dr. Hill, called as an expert witness for contestants, said: “I met Bales in my office on December 4, 1907. He was in my office about one hour.” He was then asked this question, “Now you may state what he told you at the time in relation to himself and his past history.” To which the doctor made the following answer:
He said that he was born in Tennessee, and that he lived there a few years, and that he had been living in Iowa most of his life, and for, I think he said, thirty-three years in Hardin county. He had been a merchant, he had been a county treasurer, and he had been in a bank for fifteen years. And I inquired about his father and mother, and he said that his father died at fifty-seven of apoplexy, and his mother died at seventy-five of old age, and that he had no sisters, but two brothers, one, he said, was fifty-seven, and the other sixty-nine years old. He said he had a wife to whom he had been married thirty-three years, but no children. He said he had taken a son to bring up, and that he had been in the army,
Thereupon he was asked a long hypothetical question and answered that he believed Bales was of unsound mind. Dr. Hill further testified:
It is said in Pleasants v. Fant, 22 Wall. 120 (22 L. Ed. 780):
It is the duty of a court, in its relations to the jury, to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of his lawful right in the conduct of a trial. This is done by making plain to
It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence in support of the case, but it is now settled that the question for the judge is, not whether there is literally no evidence, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established. This rule has been adopted and followed in this state for many years.
In Meyer v. Houck, 85 Iowa, 327, this court said: “It will be seen from what we have cited that the whole turn of legal thought in this country and in England is contrary to the rule of practice which requires a court to go on for several days with the trial of the case to a jury when the verdict must, in the end, be either for the defendant, or be set aside if' for the plaintiff. . . . Our conclusion is that when a motion is made to direct a verdict, the trial judge should sustain the motion when, considering all of the evidence, it clearly appears to him that it would be his duty to set aside a verdict if found in favor of the party upon whom rests the burden of proof. / . . He has no right to insist that the trial of the cause be continued as a mere idle form, or a mere experiment, that he may have the gratification of securing a verdict which must be set aside.”
We recognize the rule that the party against whom the ruling is made is entitled to have all the evidence in his favor considered in its most favorable light. In the consideration of this case we have done this, and find, upon the whole record,
Some complaint is made of the rulings of the court on the introduction of evidence. We have examined these points with care, and find no reversible error committed by the court in this respect. The objections were sustained by the court in many instances from the manner in which the question was propounded, rather than because of the substantive facts sought to be proved. This is very marked in the examination of the nonexpert witnesses, in which it was sought to be shown, by the mere conclusion of the witness, substantive facts on which to predicate an opinion on the unsoundness of the testator’s mind, and this is rightfully excluded.
We find no error, and the case is Affirmed.