Haman v. PrestonHaman v. Preston
- Reporters:
- Before:
- Stevens
It is the claim of plaintiffs that the defendant W. A. Preston, who wrote the will and signed same as a witness, was, at the time and long prior thereto, the attorney and confidential adviser of testatrix, and that he, by undue influence, induced her to execute Item 10 thereof, naming his wife as sole residuary legatee. These allega*1294tions present the only issue of fact submitted to the jury.
One of the principal grounds relied upon by appellants for reversal is that the verdict is not supported by, and is contrary to, the evidence; but, before proceeding to a discussion of this contention, we will dispose of some of the other questions raised by counsel.
of this court. Dutton v. Seevers, 89 Iowa 302; Guth v. Bell, 153 Iowa 511; Wiar v. Wabash R. Co., 162 Iowa 702; Hall v. Feagins, 169 Iowa 495; Reed v. Wellsburg, 179 Iowa 593.
Section 3705-a of the 1913 Supplement to the Code specifically required that:
Under the statute (Section 3709 of the Code) relating to exceptions to instructions, as it was prior to the enactment of Section 3705-a, exceptions must be taken within three days after the verdict, and might be included in a motion for new trial. Exceptions not taken within the time allowed were not considered upon appeal. Harrison v. Charlton, 42 Iowa 573; Bailey v. Anderson, 61 Iowa 749; Ewaldt v. Farlow, 62 Iowa 212; Maxon v. Chicago, M. & *1296St. P. R. Co., 67 Iowa 226; Robinson v. Dinn County, 71 Iowa 224. Extension, of time in which to file a motion for new trial has been .Wjdmot lo extend the time within which to except to the instructions. Bush v. Nichols, 77 Iowa 171; Clark v. Reiniger, 66 Iowa 507; Harrison v. Charlton, supra; Bailey v. Anderson, supra.
The amendment which, as before stated, was filed several months after the time allowed by the court for filing the original motion for a new trial, contained a series of separately numbered exceptions to Instruction No. 11, none of which are in any way referred to or included in the original motion, which presented no objection or exception to that instruction that could be considered by the court for any purpose. Whether exceptions under the statute made in a motion for new trial be treated as a part of such motion and subject to the samé rules relating to amendments or not, no exceptions were contained in the original motion, and could not, therefore, be supplemented by an amendment thereto. The provision of the statute permitting exceptions to be included in a motion for new trial does not contemplate that same may be filed in an amendment to such motion after the time allowed.by statute. The amendment filed November 13, 1917, did not, in fact, purport to amend the original motion, but consisted only of exceptions to instructions given, and to the refusal of the court to give certain requested instructions. The exceptions were not, therefore, taken before the instructions were read to the jury, nor were they included in the motion for new trial, nor was the amendment germane to any matter contained in the original motion; and, therefore, the motion to strike was properly sustained.
*1297
Testatrix, at the time of her death, which occurred about a week after the will in controversy was executed, was a widow, about 77 years of age, and had been sick since the 16th of January preceding. The exact nature of her illness is not shown, but her eyesight was affected thereby, and she suffered considerable pain in the head. She was German, and appears to have spoken English indifferently, and preferred to converse in German. Her first will was executed January 20, *12981916, and both wills were prepared and also signed by the defendant as a witness. Mr. Preston has been a member of the bar of Clayton County for more than 40 years, and for many years served testatrix and her husband as legal adviser and attorney. The relations between them were very friendly, and defendant performed numerous acts of kindness for both of them, as well as professional services for which he was paid little compensation. There is no direct evidence of fraud or undue influence on the part of Preston to induce testatrix to name his wife as the sole residuary legatee of her estáte. The evidence tended to show that testatrix sent for defendant and requested him to write both wills, which he did; that she requested that certain neighbors be called in to sign the first will as witnesses, but that defendant told her that would be unnecessary; that neither instrument was read to her immediately before signing. The evidence does not, however, show affirmatively that they had not been previously read to her, and does show that she stated, at the time the first will was executed, that she knew its contents. The clause naming Julia Preston as residuary legatee was identical in the- two wills. Two of the plaintiffs named as beneficiaries are nieces of testatrix, while the other beneficiaries named are friends, who appear to have been more or less kind and helpful to their benefactor. There’ was also evidence from which the jury may well have found that testatrix had, on occasions, said that she intended to reward Preston for his professional services and kindness.
It appears, also, that he had received but meager compensation for his professional services prior to January 20th, on which date deceased assigned and delivered to him a note and mortgage for $666, which was retained by defendant. At the time this mortgage was assigned to Preston, testatrix stated that he had done her business for years, had not been paid therefor, and she wanted to give *1299him something for his work. Julia Preston, as a neighbor, had also been kind to testatrix and her husband, and this is given in the will as a reason for the bequest. The estate was valued at something less than $6,000, more than one half of which, after paying all specific bequests, and inheritance tax, would, under the residuary clause of the will, pass to Mrs. Preston.