Betts v. Betts

Jan 24, 1901
Reporters:
,
Before:
Waterman
Waterman, J.

1 The parties to this action are children of Jeremiah J. Betts. The will of the latter, which is attacked, was executed on December 9, 1896, and, after giving absolutely to the wife of testator the personal property which in testator’s hands would be exempt from execution, and also a life estate in all real estate, devises the remainder in equal shares to his children, except the contestant, to whom is given the sum of $100, as his full share of the estate. The codicil, which is also contested, was executed some four months later, and simply revokes the legacy of $100 to-contestant, and declares that- he is to receive nothing whatever from the estate. Testator was almost 80 years of age when these instruments were executed. lie was a farmer, and contestant, with his family, had lived on the farm for a time, aiding his father in carrying-on business. There was trouble between contestant and both his parents. No little feeling was engendered on each side. On the contestant’s part, all this trouble is charged to wicked ‍​​‌‌‌​‌​​​​​‌​​‌‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​​​​‌​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌‌​​​‌‌‌‌​​‌‌‌​​​​‌‌‌​‌‌​‍efforts on the part of his brothers and sisters to injure him with his father. On the other side the charge is made that the trouble grew out of contestant’s unfilial conduct. During the year 1891 testator had two attacks of illness — one in March, and the other some two months later. His death, however, did not occur until January 28, 1898. It is contended by contestant that the mental infirmity of testator was exhibited first several years prior to to the making of the will, and that his mind from that time on steadily failed with advancing age, aided by an attack of the grip in 1895, and the other illnesses mentioned.

*1152 *114It is first argued by counsel for appellants that the verdict is not supported by the evidence. The record is quite voluminous. It would serve no useful purpose for us to ser out the testimony in detail. As usual in cases of this character, it is in sharp conflict. That there was evidence sufficient to take contestant’s case to the jury on the question of *115mental incapacity was practically admitted by proponents in tlie trial court, for they did not ask the court to withdraw that issue. On the contrary, they requested a number of instructions on that branch of the case. As the verdict consisted of special findings on the two issues, both in contestant’s favor, if either is good there can be no reversal on the ground now under consideration. But, whatever proponents thought, it is our opinion there is a substantial conflict in the evidence. Some of us would have been better satisfied with a verdict the other way. But that is not enough to warrant us in interfering with the result. Where there is a real conflict of evidence, the case is for the jury. Phillips v. Phillips, 93 Iowa, 615-618. In this case.it was said that the rule announced in Meyer v. Houck, 85 Iowa, 319, does not authorize this court to determine as to whether the preponderating weight of all the evidence is in favor of one party or the other, nor to pass upon the credibility of the witnesses. ‍​​‌‌‌​‌​​​​​‌​​‌‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​​​​‌​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌‌​​​‌‌‌‌​​‌‌‌​​​​‌‌‌​‌‌​‍See, also, on this point Scott v. Railway Co., 112 Iowa, 54.

3 II. The court admitted in evidence an extract from a medical work (Maudsley on Responsibility in Mental Diseases), and it. is thought this was a violation Of the rule announced in Bixby v. Bridge Co., 105 Iowa, 293. We find there is no proper foundation* in the record for the position taken by counsel for appellant. This book was first offered in evidence by contestant, and on objection the offer was withdrawn; counsel for contestant saying, in effect, they would not put it in over an objection, although the court might be willing to receive it. Later the offer was renewed. The objection was made that it was incompetent, immaterial, and irrelevant, but that no point was made “because it is contained in or is a part of what purports to be a book or treatise by the author named, but because the subject-matter is incompetent.” Counsel for contestant then said: “I understand that your objection does not go to the competency of this class or character of *116testimony?” to which, response was made: “That is it.” It is clear, the objection was to the subject-matter, and. not to the form in which the testimony was offered. The point now presented must be regarded as waived. ‘The trial court was certainly justified in believing that the objection did not go to the competency of the book.

4 III. Contestant was permitted to testify, over objection, to a difficulty with his brother Sheperd, caused by the latter’s -objecting to contestant’s horses being placed in his father’s barn when contestant had driven out. to the homo place -on the evening preceding the father’s death. This ruling can be sustained on the ground that the testimony tended to show Sheperd’s feelings towards his brother, and that this shed some light on the issue of undue influence. The mother interfered ‘in this difficulty in contestant’s behalf. What she said was repeated by contestant on the stand, and to this there is exception taken. It does not appear, however, that any objection was made to this part of the witness’ testimony in the trial court.

5 IY. ‍​​‌‌‌​‌​​​​​‌​​‌‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​​​​‌​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌‌​​​‌‌‌‌​​‌‌‌​​​​‌‌‌​‌‌​‍One Dr. Yoldeng was an expert witness, who testified for the contestant as to the condition of the testator’s mind. His evidence was given in response to hypothetical questions. On cross-examination he was asked to say whether, upon a certain assumed state of facts, he would say testator was capable of “transacting ordinary business intelligently.” Practically, that was equivalent to asking him whether testator was competent to make a will, and this was the ultimate fact for the jury to find. The court sustained an objection to the question. In Pelamourges v. Clark, 9 Iowa, 1, the trial court ruled out this question: “What was his [testator’s] state of mind, as regards his capactiy to make a disposition of his property, on or about November 20, 1850 ?” In sustaining the ruling this court said, “The answer of the witness to the fifth interrogatory was rightly suppressed, for the reason that a witness cannot be permitted to give his opinion in answer *117to an inquiry which embraces the whole merits of the case, and leaves nothing for the jury to decide;” citing De Witt v. Barly, 17 N. Y. 347; Jameson v. Drinkald, 12 Moore, 148; Gibson v. Gibson, 9 Yerg. 329. See, also, Muldowney v. Railroad Co., 39 Iowa, 615-622, and Rogers Expert Evidence, pp. 37, 47.

6 7 V. Proponents, among other things,, charged contestant with asserting that his father was a liar. One Harris, a witness in their behalf, testified that, on one occasion when testator was talking with him, contestant came up and said: “Gentlemen, don’t believe a word he says. Every word he speaks is a God-damned lie.” Contestant asserts that what he said on this occasion was: “Bather is repeating some lies the folks told him. * * *” In explanation of this conduct he was permitted to say that he had heard of things being told his father derogatory to himself, and these remarks he was allowed to repeat. As an explanation or excuse for his remark to Harris, we think this testimony was properly received. So, too, the testimony of contestant’s wife as to what she had told him was admissible on the same ground. These matters bore upon contestant’s ‍​​‌‌‌​‌​​​​​‌​​‌‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​​​​‌​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌‌​​​‌‌‌‌​​‌‌‌​​​​‌‌‌​‌‌​‍motive and intent in making the remark to Harris, and were admitted for this purpose only.

8 VI. A witness testified that on one occasion when he went to testator’s house the latter abruptly said: “We are just catching rats here by the sackful.” On cross-examinaiton proponents asked what, impression this remark made upon him. Objection being made, he was not permitted to answer. If there was any error in this ruling, it was without prejudice; for immediately following this the witness stated his impression, and said that he was surprised at the remark and regarded it as strange. What we have just said disposes of the error assigned on the, tcslimoney of the witness Doke.

VII.It is urged that Lewis, a non-expert, witness for contestant, did not state facts sufficient to authorize, him. to *118express the opinion he did as to testator’s mental condition. There is some auhority for saying that it is not within tho province of the court to pass upon the sufficiency of the information upon which the witness rests his opinion; that this is a matter for the jury. McClackey v. State, 5 Tex. App. 331. But, without indorsing this doctrine, we havo to say that no general rule can be laid down as to what opportunity for observation will be sufficient. Courts should be slow to make any hard and fast rule, for all the facts out of which the opinion grows are given the jurv. Lewis’ observation and association were certainly sufficient to give his opinion some weight. See Bogers Expert Evidence, p. 92. A further objection to the testimony of Lewis is that he was allowed to base his opinion upon other facts than those testified to by him. This assumption is not justified by the record. VIII. Evidence was given of some conversation between contestant and his mother on the night preceding testator’s death. It is claimed by contestant that while he was

8 10 at his father’s house that day he had nothing to eat; that all other members of the family went to the house of one of the brothers, near by, and had their meals; and that he was not ‍​​‌‌‌​‌​​​​​‌​​‌‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​​​​‌​‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌‌​​​‌‌‌‌​​‌‌‌​​​​‌‌‌​‌‌​‍invited. ■ When night came, as he was permitted to testify, his mother said she rvould not go to bed until he had something to eat. This could not have been given any weight by the jury, except as showing the general state of feeling between the parties, and for this purpose it was admissible. A witness, on cross-examination, was asked whether he ever heard of the experience of an English statesman in an insane asylitm, who, after talking with a number of patients, thought they were sane. The witness responded that he had heard of similar instances. Here the matter was dropped. It is inceivable how any prejudice could have resulted to appellants from this incident. Finally, we will say there was no error in allowing the cross-examination of the witness Lacey, *119nor insustaining the challenges to the two jurors, Barnett and Cleary. It does not appear but that the jury which tried the case was fair and impartial. Furthermore, we think the court’s action was justified by the answers of the jurors on their voir dire. — Aeeirmed.