189 Iowa 28 | Iowa | 1919
On the trial of the contest, the court below withdrew the issue of undue influence from the jury, and submitted for its verdict the one question of the testator’s testamentary capacity. As usual in this class of cases, the' question thus presented is one of fact, and involves very little difference between counsel as to the fundamental principles of law applicable thereto. The record is very voluminous, filling about 500 closely printed pages; and we shall not attempt to embody it in this opinion, even in outline, except as it may seem necessary to make clear our position in disposing of the appeal. As we have said, the one issue is upon the testamentary capacity of John Swain at the date of the will, and upon this fact the finding of the jury is final, unless we are able to say, as a matter of law, that the verdict is without substantial support in the record, or that we find error to the prejudice of the proponents in the rulings of the court upon questions arising pending the trial.
I. We first consider whether the contestants’ case is so clearly without support in the evidence that the verdict in their favor should be set aside. We have to concede that there is much testimony tending to support and strengthen the usual presumption of mental soundness in the testator, and that, if the case were triable here fie novo, and the credibility of the witnesses and weight and value of their testimony were matters for our determination, some of us would be strongly inclined to sustain the validity of the will. But the function of the court in law actions is limited to the consideration and correction of alleged errors in the proceedings below, and this does not include the right or authority to correct possible errors of judgment in the jurors, if their verdict has any reasonable basis in the evidence before them.
A careful survey of the entire record convinces us that, upon the pivotal fact, the mental capacity of the testator at the date of the will, there was sufficient evidence upon which
Altogether, we think, as already indicated, that to hold that these things, if believed,- are insufficient to take the question of the testator’s testamentary capacity to the jury, would be a clear invasion of the province of the jury. We use the words “if believed,” because it is within the province of the jury to believe that to which the court, if a trier of facts, might not give any credit. The writer of this opinion, speaking for himself only, would hesitate long to give credit to the story of any son or daughter who comes
But the facts in the present case were all before the jury, and we must respect its verdict. We cannot say that it is an unreasonable finding. It is true that a man may be a drunkard, and yet not necessarily incapable of making a valid will. He may be grossly, immoral and filthy, and still not be of unsound mind, in the legal sense of the word. He may be quarrelsome or abusive or profane or eccentric, and yet not necessarily incompetent; but, Avhen we find very many of these characteristics uniting in a single character, and add thereto the testimony of experts that such a showing indicates a loss or decay of mentality, a verdict to that effect by the jury cannot be disregarded.
II. Assuming, then, that the case made by the contestants was sufficient to take the issue of fact to the jury, we Ixave next to inquire whether any substantial error is disclosed in the rulings of the court upon the trial.
To some extent, what we have already said is controlling upon questions raised in the several assignments of error, but there are others which call for our consideration.
Much of the complaint made by counsel relates to the refusal by the court to instruct the jury that evidence showing that the testator had syphilis, that he frequented houses
Counsel’s expressed view, which is, in substance, that all men, however sane, are “tarred Avith the same stick,” and that the only difference between indiscriminate intercourse between the sexes and their association in lawful Avedlock is the “mumbling of a few Avords by a clergyman from a ritual,” may, perhaps, be a legitimate argument, Avhen addressed to a jury, made up of the kind of men who are popularly supposed to “hang together ;” but he can hardly expect the court forgive it the stamp of judicial approval, as a legal principle.
There was no error in refusing the requested instructions.
Exceptions were preserved by appellants to the overruling of their objection to certain evidence as not proper cross-examination, and other evidence as not being proper rebuttal. The extent to which cross-examination of a witness may be pursued, and the allowance of evidence in rebuttal, if not otherwise objectionable, are'matters left very largely to the discretion of the trial court — -a discretion which does not appear to have been here abused; and the objection cannot be sustained.
A few other exceptions are taken to rulings on matters of testimony, but we shall not extend this opinion for their discussion, as they involve only familiar principles of the law of evidence. We have examined them all in the light of the record as shown by the abstract, and find no error in them.
The judgment of the trial court is — Affirmed.