186 Iowa 345 | Iowa | 1919
The will in question was executed March 1, 1913, and the testator died January 29, 1917, at the age of 70 years. The contestants allege, and the jury found, that, at the date of said instrument, Matthew Byrne was of unsound mind, to an extent rendering him incapable of making an intelligent disposition of his estate. The evidence offered in support of this claim involves, to a large extent, the story of this man’s life in its entirety. Many alleged incidents relating to his acts, words, and conduct during the period of 40 years or more preceding his death are testified to with particularity by witnesses, and pressed upon our attention by counsel, as justifying the verdict and judgment below. The volume of such evidence is quite large, and we cannot attempt its restatement in this opinion with any degree of fullness; but, having reached a conclusion at variance with the views of the trial court, we récite enough of the showing to make plain the grounds upon which we think a reversal is made necessary.
I. Byrne was a native of Ireland, who came to America while still a boy, and, except a period of four years hereinafter referred to, lived practically all the remainder of his life at or near the town of Fonda, in Pocahontas County in this state. While still a young man, he married. The wife of that union died about the year 1887, having, borne him ten children, who survived her. In 1894, he married the proponent of this will, by whom he had two - children,
The testimony of these children, upon which much stress is laid in argument by their counsel, relates almost exclusively to the alleged tyrannical and cruel treatment which they suffered at the hands of their father, while still members of the family home. For example, the oldest daughter, Katherine, testified to seeing her father strike her brothers and sisters with buggy whips or cattle whips, for what she describes as slight or trivial faults; that she saw him put the children to bed with a whip; that he would sometimes strip them naked and whip them. She says the “main thing was that the boys would not do their work to suit him,” and that, in at least two instances after such shippings, she “saw their bodies would be bleeding.” During the lifetime of her mother, she remembers occasions when her father would be whipping some of them, and her mother stepped in “between him and the children, to protect them,” and that, on such occasions, he struck her also. She says she never saw him offer any violence to her mother except when she interfered to protect her children.
After reciting these and other similar occurrences, the witness was interrogated as follows:
“Q. I want you to tell the jury what your judgment and opinion is, and I want you to base your judgment and opinion solely and exclusively upon what you saw your father do, what you heard him say, his appearance and conduct, all of which you have related here in your testimony to the jury this morning, whether or not, in the year 1897, your father was a person of sound or unsound mind? (Mr. Price: We object to that as incompetent, irrelevant, and immaterial. Overruled. Proponents except.) A. Unsound.”
On cross-examination, this witness admits that she herself might have whipped some of the children, — her brothers and sisters, — but expresses her opinion that some of them deserved the punishments given them by her father, and again concedes that “sometimes there was some justification and excuse; there were times when he whipped me, he might have been justified. I cannot say as to whether or not his punishments of the other girls was justified. * * * Father frequently sold cattle in Chicago. He oc7 casionally bought me and other members of the family gifts. He bought me a gold watch in my childhood.”
The son Thomas testified to much the same story of the frequency and severity of the whippings administered by his father to the older children, and to his hitting the witnesses’ mother once or twice, when she came between him and the children. He also developed the fact that the deceased possessed a revolver, which he sometimes carried, and that, on one occasion, he became involved in an affray with one Griffin, in which he shot and wounded the latter,
After stating these incidents, this witness was .asked the same question we have above quoted from the examination of his sister Katherine, concerning his opinion whether Matthew Byrne was of sound mind during the last 20 years of his life, and answered, “Unsound mind.” On cross-examination, he emphasized this expression by declaring, “I knew my father was a raving maniac.”
Another son, James, corroborates the story of Thomas "and Katherine to some extent, but says he never saw his father whip either Parnell or Matthias or Lizzie.
“Saw father cruelly beat his horses. Saw him strike mother once or twice. After mother died, father used to cry almost all night long. That continued eight or ten months. It continued even after he began to wait on other women.”
Basing his opinion on the facts related by him, he also declares that his father was of unsound mind as far back as he can remember him. This witness had not visited or seen his father after some date in the year 1911.
The daughters Mary and Lizzie testify to the story of whippings by their father, but with materially less particularity than is indulged in by the witnesses already mentioned. Mary unites in the opinion that the testator was of unsound mind, but Lizzie expresses no opinion on that subject. Margaret does not testify, and does not join in the contest.
The contestants also called the proponent as a witness in their behalf, with the apparent purpose of drawing from
The foregoing, we think, sufficiently states, in substance, the entire case, as made by the testimony of the family in support of the contest. In addition to the family witnesses, certain non-expert neighbors and acquaintances were called by the contestants, as were also one or two physicians.. It appeared that, about March 1, 1916, three years after the will was executed, the testator went to Dubuque, and entered the Sisters’ Hospital at that place for treatment, and remained there some six or eight weeks. His son Matthias, to whom reference has already been made, had become a helpless invalid, if not hopelessly imbecile, and was then already an inmate of that institution.
The postmaster at' Fonda, an old acquaintance and neighbor, went with Byrne to Dubuque, and, being called as a witness by the contestants, says that, on the trip, Byrne talked with the members of the party.. The witness noticed his appearance, manner of talking, and facial expression, and saw nothing peculiar, to attract his attention, except that he was a little nervous.. His conversation was coherent; he knew what he was talking about; he knew the doctor’s name, and recognized the hospital. The same witness saw and talked with him again, after his return home from the hospital, and still saw nothing unusual in him.
Of other witnesses for the contestants, we may mention the following: One Ellis, an old neighbor, says he saw him on the street quite often, about the time he went to Dubuque, and sometimes he passed without speaking, or returning offered greetings; but the witness frankly adds,
“Help me take this boy down and put him in the alley.
I won’t harbor him any more. I am going to see Dr. Whitney, and see if I can have him moved. I can’t stand it any more.”
Soon after this alleged incident, Matthias was sent to Dubuque, his father paying the hospital for his care. One McLaughlin tells that, 15 years ago, he heard from some source that Byrne had accused him (the witness) of offering him two red pigs, to stay away from a certain law suit. He went to Byrne with the story and denounced it as a lie, but Byrne falsely insisted upon its truth. After that date, the witness and Byrne did not speak to each other. One Morrison says that, on a Sunday in 1914, he, with others, entered Byrne’s pasture without permission, to shoot ducks •
Michael Byrne, a nephew of the testator’s and a cousin of the defendants’, confirms these statements in several particulars. He says he heard Byrne use harsh and profane language to his children, and that:
“He was continually talking about them and abusing them for not doing their part of the work on the farm. Saw him whip Matthias, when a small boy, and said he would kill him if he did not do his work better, and be a better boy.”
Witness saw him beat a horse brutally with a neckyoke, but this was the only occasion coming under the witness’ attention of his cruelty to animals. Just before he went to Dubuque, heard him say he was going to die, and the witness advised him to make his peace with God, and consoled him with the suggestion that he “had lived to a ripe old age, and had reached the age when he ought to die and could expect to die.” This is the only nonexpert witness, outside of the immediate family of the testator, who expresses the opinion that he was of unsound mind. This
The expert witnesses examined by the appellees were Doctor Whitney, Byrne’s family physician, and Doctor Walker, one of the visiting physicians at the hospital where Byrne was treated in March and April, 1916. To an understanding of some parts of the testimony of Dr. Whitney, it should be here said that the will offered for probate, in addition to being signed and witnessed in the usual manner, had appended thereto a certificate signed by his physician, in the following words:
“I, C. R. Whitney, a practicing physician located at Fonda, Iowa, do hereby certify that on March 1st, A. D., 1913, I visited Matthew Byrne for the purpose of ascertaining his mental condition. I found him to be in full possession of his mental faculties and his mental condition seemed to be in all respects normal.
“O. R. Whitney.”
Testifying for the contestants, the doctor says he was the attending physician of the testator’s family for the last 10 years of Byrne’s life, and that, during that time, .Byrne was troubled with cardiac asthma, and at times, with his stomach or bowels. On one occasion, the doctor had treated him for acute nephritis. He signed the. certificate above mentioned at the Byrne home. Was there with the persons who witnessed the will, but does not recall at whose invitation. Was attending physician at the time of Byrne’s death. The cause of death was general failing of the physical and mental forces. He was having some of his old cardiac asthma. There seemed to be a general
“I remember the trip to Dubuque. I had a talk with him before he went to Dubuque. In advising with the family, we concluded it was best to take him to the sanitarium or some place for special treatment. The plan was to get him to go willingly. ' So it was suggested that he go to Dubuque and visit his son, and he agreed to do that. This suggestion was held out to him to avoid a controversy. My-plan was to have him undergo a course of treatment. His mental faculties were somewhat impaired at the time we took him to Dubuque.”
The first changed or abnormal mental condition which the doctor noticed in Byrne was just before his trip to Dubuque. After his return home, he was very much improved. Was not exactly normal, but much improved. Was about town, transacting business. He was able to transact affairs of business. He never relapsed into the state of abnormality in which he was when he went to Dubuque. There was some deterioration in his mental condition, as he approached death. When the doctor went to the house in 1913, to certify to the will, he talked with Byrne, examined him physically, and remained with him during the execution of the instrument. On cross-examination, he was asked whether, in his opinion, Byrne was at that time of sound mind, and replied:
“There is no question in my opinion but that he was of sound mind at that time. Prior to 1913, I never discovered any evidence of mental unsoundness in Matt Byrne at all.”
Dr. Walker, of Dubuque, testifies to visiting Byrne while a patient at the hospital in 1916, and says of him that he was not at all times able to carry on a sensible conversation. Did not seem to understand where he was. Thought he was at home. Was confused and hesitating in his answers to questions. The witness, after giving a some
“In his case, I believe paresis had only developed to cause a change in his disposition to some extent: The senile dementia developed later on.”
Being asked for his opinion, based upon what he saw of Byrne, he said:
“I believe that, during the time that I knew Mr. Byrne while he was a patient in the sanitarium, he was of unsound mind. I think he probably was troubled with senile dementia for a period of three to five years prior to March 1, 1913, and with paresis, at a rough estimate, .probably five to ten years before that date.”
To a repetition of the question, he asserts that, in his judgment, Byrne had been insane for a period anywhere from eight to ten years. On cross-examination, the witness says that both paresis and senile dementia are ordinarily of slow development, and that men sometimes continue to conduct business for several years, before becoming wholly incapable. The disease, while progressive in its nature, is sometimes remitted or at rest for an indefinite time before resuming its advance. Senile dementia is a gradual breaking down of the brain tissue. “There cannot be sanity where the tissues themselves are deteriorated.” Such is, in substance, the contestant’s case.
Turning now to the counter showing: While Doctor Walker, for the contestants, says that he alone visited and treated Byrne professionally during his stay at the hospital, the proponent produces Dr. McGuire, of the same city, who testifies that, beginning with April 9, 1916, he attended and treated Byrne, as long as he remained there. He says he found the patient suffering from a nervous condition — not severe. He was able to converse intelligently, and had but
Dr. Murphy, of Sioux City, was an acquaintance of Byrne’s from the year 1908, when he first examined and treated him. The witness was also called to see Byrne in consultation with Dr. Whitney, just before the patient went to Dubuque. On both occasions, this physician found that there was some ailment of the patient’s heart and stomach, and he testifies that, while such sickness might produce some temporary mental disturbance,' it would disappear with improvement of-the health in other respects. After a very full discussion of the nature, causes, and development of paresis and senile dementia, Dr. Murphy gives it as his judgment that:
“Mr. Byrne was not, during any of the time that I knew him or had anything to do with him, suffering from either of said diseases. He was not, at any of the time that I knew him, suffering from any mental affection whatsoever, except this psychosis of heart disease.”
The will in controversy was, drawn at Byrne’s request by E. A. Fairburn, for many years president of one of the local banks, and was witnessed by him and P. J. Mullan, a business man of the town, who had known Byrne 30 or 40 years. The instrument was prepared at the bank by Fair-
Mullan had known Byrne quite intimately for a long time, and visited him after he returned from Dubuque, and never noticed any change in him, except that he was not in good physical health. Never observed any indication of forgetfulness or delusion, or anything indicating mental failure. Both these subscribing witnesses express their opinion that he was then of sound mind. ■
It appears that, a few days before going to Dubuque, he held a public sale, at which he disposed of his horses, cattle, and farm machinery. He himself made all the arrangements for the sale, and at his request, the cashier of another bank in town acted as clerk of the sale. He was in the habit of doing business at this bank also, and, during the three-year period above mentioned, he had made to said bank 23 different notes. He borrowed money and carried an account there after his return from Dubuque. At no time did the cashier see any indication of mental deterioration in him. Both bankers say he was peculiar only in being very exacting and particular in his business transactions, to have everything right. The opinion that he was
“Let me know if all that property is still in his name. The easiest way is the best way, and it will have to be worked on the sly.”
In another letter 'by James to his sisters, he said, referring to his father and stepmother:
“I would not pay any attention to the old man. All he is after is to get everybody out of his road, so that him and that old slob of his can spend all the money.”
These letters fell into the hands of the testator. In 1904, the same son wrote his father grossly disrespectful and abusive letters. Thomas left home when but 14 years old, but later returned, for a time. His final leaving was when about 20 years old, from which date all his relations with the home were severed, and had been for 20 years or more before his father’s death. William died at the age of 19, and none of the children of the first marriage, except Matthias, remained at home beyond the age of 20. They had been scattered in various directions for years before the
What'we have said respecting the estrangement between Byrne and the contestants furnishes, also, all the explanation needed of his somewhat unusual act in having his will attested by Dr. Whitney’s certificate as to his mental soundness. What he had learned of James’ proposal to others of his prospective heirs to devise a scheme for excluding his widow from the benefits of his estate, together with his shrewd appreciation of the fighting qualities of the Celtic strain in the blood of his children, left him in no doubt that they would contest a will unfavorable to them, if ground therefor were discoverable; and with a wisdom which argues powerfully for the soundness of his intellect, he attempted to shut and lock the door against the usual
The testimony of Dr. Walker alone is not enough to raise a jury issue upon this question. In the first place, while he is quite positive that, when he saw Byrne three years after the making of the will, the testator was suffering from paresis and senile dementia, and states as his judgment that the process of deterioration must have covered a period of five to ten years, he does not say, and in the very nature of the case, as he states it, it is impossible for him to say, to what extent that loss of mental power had reached at the date of the will, three years before he ever saw the man. He tells us, as do all the other expert witnesses — as, indeed, we know from common observation and knowledge — that the mental decay attending these diseases is ordinarily of slow development, and, while progressive in character and incurable, its progress is at times remitted or suspended for indefinite periods; and that men sometimes continue in business for several years,
We think it unnecessary to review the authorities bearing upon the issues tried. The subject has been discussed, and the rules of law applied so frequently, that we will not extend this opinion for their further restatement. We con
II. Among other things, the court instructed the jury as follows:
Error is assigned upon the giving of the foregoing para
In view of the possible retrial of the case, we think it proper it say, without regard to the sufficiency of the exception, that the court’s charge in this particular cannot be approved. It is open to two objections.
1. We think the jury would be likely to understand therefrom, though we are quite sure the court did not so intend, that, although all the nonexpert witnesses coming in contact with the testator in a business or social way unite in the opinion that the testator was of sane and sound mind, yet such opinion must yield to that of the experts.
We doubt, also, whether there is any evidence in the record to justify the instruction, even if it be accepted as a sound statement of law.
For the reasons stated, the judgment and verdict below must be set aside, and the cause remanded for a new trial. — Reversed and remanded.