174 Iowa 222 | Iowa | 1916
On the 19th day of February, 1912, there was filed in the office of the clerk of the district court of Greene County certain written instruments purporting to be the last will and testament of Mary S. Workman, deceased. These instruments consisted of two separate documents, one purporting to be her will (which, for convenience hereafter, we will call the original will), dated May 20, 1911; the other purporting to be a codicil to the will, dated January 26, 1912. The will provided:
1. For the payment of her debts.
2. A bequest to her brother, James Thompson, of $50.
3. A bequest to her brother, Samuel Thompson, of $700.
4. A bequest to her brother, Joseph Thompson, of $600.
5. A bequest to her sister, Margaret Hill, of $500.
6. A bequest to her nephew, John F. Thompson, of $200.
7. A bequest to her niece, Martha Hoyer, of $200.
8. A bequest to the Methodist Episcopal Church of Grand Junction, of $300.
9. A bequest to Grand Junction Cemetery Association, of $50.
10. A bequest to her sister, Ellen A. Zellhoeffer, of all her household goods.
11. “All the rest and residue and remainder of my estate which I now own, may acquire, or shall die seized, or possessed, I give and bequeath to my brothers, Joseph and Samuel, and to my sister, Ellen Zellhoeffer, the same to be divided equally among them, share and share alike. ’ ’
F. J. Harned was nominated as executor of the will. The codicil made no change in the original will, except in the 11th clause, and the only change in this clause lies in adding the name of Margaret Hill as residuary legatee with the others named in the said clause.
Afterwards, on March 25, 1912, Joseph, James and Samuel Thompson, brothers of Mary S. Workman, appeared and filed written objections to the probate of the will, basing
This so-called codicil appears to be dated 8 months after the execution of the will. It was not shown to have been executed and witnessed as required by law, and, not having been offered in evidence, was not before the court for consideration, nor is it before us now. We say this because there is some contention in this case that the will and the codicil should be construed together. There is no codicil in this case to be construed, either with or without the will. Neither party placed it in the record. So far as this record is concerned, the codicil is a dead piece of paper. It was filed as a ’codicil, but no p'roof was offered which gave it life as such. In fact, proponents disclaimed any right under this so-called codicil and conceded that, under the showing made, it was not entitled to probate, thus accepting contestant’s contention
1. Error in the admission and rejection of evidence.
2. Error in the instructions given by the court.
3. Misconduct of counsel.
It was claimed by contestants that Mary S. Workman executed certain deeds to her sister Ellen Zellhoeffer and to her sister’s children on the same day and at the same time she executed the will, and as a part of the same transaction. The scrivener who wrote the will, and who is executor of the will, was asked, when upon the stand, whether or not there were any other instruments executed at the time the will was executed. Objection was sustained to this question. Bertha Zellhoeffer, niece of the testatrix, was asked whether or not she was 'one of the grantees named in one of these deeds. Objection was sustained; On these rulings, error is .predicated.
Of course, it was right to show, by competent evidence,
It is alleged, that the court erred in sustaining objection to a question asked one of the contestants, Joseph Thompson :
“Q. Did you observe the expression upon her face and know what that indicated? A. Discouragement.”
This answer was stricken out on motion of proponents. The witness, however, was permitted to say:
“The expression of her face and her appearance showed signs of pain, anguish and distress. When she was not sick, she was of a cheerful disposition. She looked very frail and pale, reduced in weight, her eyes set further back in her head, her lips were of a redder nature than natural. Her face was swollen. Her general appearance showed weakness. Basing my opinion on what I have detailed in my testimony, I would say she was of unsound mind.”
Error was predicated upon the action of the court in sustaining objections to questions and striking out answers given by one James P. Davis, called by contestants. Before the question was asked, he detailed at some length what he observed in her conversation at the time he saw her, as compared with her conversation in times of health, her condition of flesh, her inability to hold her mind on conversations, and many other things. The question was asked him:
“Basing your answer upon the same facts and circumstances, was she or was she not of sound mind?” He*229 answered: “I would have to state that her mind was not strong, by reason of her wasted condition and decline of health, but to say that her mind was unsound, I don’t know to what extent that would go. Well, I don’t believe she was capable of transacting business of any great importance.”
On motion, the last part of this answer was stricken out.
The question was subsequently asked him:
“And her actions. She did not act as she did when she was well and before she went away?” Witness answered: ‘ ‘ I consider her actions as those of a weak woman. Her mind as well as her body. I don’t think she was unsound, by any means. I simply mean she was not in a condition to transact business matters of any importance. ’ ’
This answer remained, and cured whatever error there was in the previous action of the court.
James Thompson, witness for contestants, on direct examination having described in a general way the appearance and manner of the deceased, was asked the following question:
“Q. What is the fact as to whether or not, while she was there, she appeared to be-unsettled in her thought about her property? (Objected to and sustained.) ” He then stated: “I never saw any improvement in my sister’s condition after she returned to Grand Junction.” (It appears that the will was executed about a week after her return.) He was then asked this question: “Basing your answer upon what you described in your testimony, and this statement alone, what do you say as to the mental condition of your sister on the 20th day of May, 1911? Was she normal or otherwise? (Objection renewed and overruled.) A. It was not.”
This was a clear antidote to the poison complained of.
Mrs. Goodwin, called as a witness for contestants, after describing Mary Workman’s condition as she observed her the day after her return from New Mexico, was asked this question:
“Did her appearance indicate any change in her health*230 as to what it was when she first came back? A. She- was here quite a while before she-seemed to get over the change of climate.”
This answer was stricken out. On this, error is predicated. She, however, had been asked and had answered this question:
“You may describe her condition as you saw her on that day. A. Her face was bloated and her body was bloated, and she was not herself. Her eyes were dull, and she seemed unable to hold them open. My sister, Mrs. IToyer, was taking care of her at the time. Her condition, as compared to what it was before, was very poor.”
The error complained of, if any error was made, could not possibly have prejudiced the contestants. The witness had fully detailed the facts within her observation, tpuching the matter inquired about. However, when recalled for further cross-examination, she testified:
“After Aunt Mary returned from New Mexico, she just gradually kept going down all the time. I couldn’t see that she got any better. I was over there every day, or every other day. Sometimes she told me she wasn’t able to talk.”
On motion of proponents, the court struck out both these answers. This ruling was essentially right. The answers were the opinion of Bertha Zellhoeffer, based upon no facts disclosed by the evidence, and were not relevant in any way to the issues tendered.
“Basing your answer upon what you have related in your testimony, would you say that, on the 20th of May, 1911, Mrs. Workman was of sound or unsound mind?”
Leading up to this question, the witness had testified that he had known Mrs. Workman for a good many years; had often seen her; had conversations with her when her husband was living; that he met her twice after she came back from the south. The first time, she was sitting on the porch. He opened the gate and went in and chatted with her. Thinks that he did not talk with her during her sickness before she went to Mexico. Talked with her previous to her illness. Talked with her ten days or two weeks after she returned from Mexico. She was changed in her appearance as to what she was before she went away; was in a broken-down condition; was nervous, looked weak. Her conversation was not
*233 “Sanity is the rule; insanity, the exception; and when it appears that a witness has known a person for a long time and has never known anything unusual, either in his speech or actions, he is competent to express an opinion that the man is sane, because sane or normal acts and speech are consistent with the normal condition, sanity. Insanity, however, not being a normal condition, before one is competent to say that another is insane, he must state some fact that is inconsistent with sanity; and this is not done until the witness is able to testify to something that the man has said or done which fairly tends to show insanity.”
As said in Stutzman v. Sharpless, 125 Iowa, at page 340:
“The facts on which an opinion that the deceased’s mind was unsound, should appear in their natures somewhat inconsistent with mental soundness, as that the acts or talks of deceased were unnatural or unusual, or such as would not ordinarily be anticipated from a person of his character. In other words, the facts and circumstances must have been such as tended to support the witness’s conclusion. . Undoubtedly, the witness must have enjoyed adequate opportunity of observing deceased’s capacity, but habits of observation, as well as conditions of the subjects of investigation, differ so radically that no general rule as to what character or number of circumstances shall be related before the witness may speak his opinion can be laid down.
“Having indicated some facts which tend to support the opinion to be given, the witness should be allowed to express it, and its value, as well as the effect thereon of any explanatory circumstances, ... is for the determination of the jury, rather than the court.”
See also Alvord v. Alvord, 109 Iowa 113.
In a ease like this, where the disease is slowly progressive, it is not necessary that the observations upon which the opinion of insanity was based were had at the time the will was executed or immediately before. It may be shown im
“ It is not denied that, at the time of the trial, her reason was gone and she was totally incapacitated for any intelligent action. Her insanity seems to have been of slow growth, running back through some eight or ten years. Under these circumstances, we are not prepared to say that it was improper to show her condition of mind through the whole period inquired about. It was part of the history of her case, to be known throughout, in order to form an intelligent judgment as to her condition at the time of executing the deeds. It would be otherwise if her insanity were temporary ■ in its nature, as where it was occasioned by the violence of disease, or she was subject to lucid intervals.”
■ It has been held that non-expert witnesses must speak from their own personal observation or knowledge, and must state, so far as they are able to do so, the reasons upon which their conclusions are founded. The jury are entitled to have before them the means of testing the accuracy of the opinion, and the witness must state the facts upon which he bases his conclusion. When the witness has stated the facts and circumstances observed by him, tending even though in a slight degree to show the mind to be unbalanced, abnormal, insane, he may then state his opinion, based upon such observation.
We think this rule was also violated in the examination of Mrs. Allen. She should have been permitted to give her opinion, based upon her observation, touching the sanity or
II. It is next contended that the court erred in its instructions to the jury.
“The apparent inequality or inequity in the provisions of a will will not alone warrant the presumption of mental incapacity, but they may and should be considered as circumstances in connection with other facts bearing upon the condition of the testator’s mind at the time of executing the will.”
The court in this case instructed the jury as follows:
“The fact, if it be a fact, that such instrument, offered as the last will and testament of Mary S. Workman, deceased, may be considered by you as unreasonable, should not, of itself, be considered by you as any evidence that Mary S. Workman was of unsound mind at the time she executed said instrument.”
The court in another instruction said:
“You are instructed that the fact, if it be a fact, that the will is not as you would have it must not control you in arriving at your verdict. However unjust you may regard the will in its provisions, still you will not set it aside for that reason alone, nor let it have any weight with you, unless you find from the evidence and instructions that the will is, as a whole, invalid, because of the unsoundness of the mind of Mary S. Workman.”
The fact that the will is unjust and inequitable, that the testatrix omits from the subjects of her bounty those who are apparently as much entitled to receive at her hands as those for whom she makes provision, is a fact to be considered, in and of itself, in determining whether or not she had, at the time of the making of the will, a rational conception of her relation to the subjects of her bounty. It is a fact to be considered, in and of itself, as having some probative force upon the ultimate issue. It is error to say that these facts cannot be considered as any evidence, unless the jury is satisfied that the administratrix was of unsound mind at the time she made the will. It is error to say that this kind of evidence is not to have any weight with the jury, unless the jury first finds from the evidence and instructions that the will, as a whole, is invalid, because of the unsoundness of the mind of the testatrix. The practical effect of these instructions is to withdraw from the jury the consideration of this evidence and its probative force upon the ultimate issue, unless they are first satisfied that she was of unsound mind. Of course, if she was of unsound mind to such an extent that she was want■ing in testamentary capacity, the will would be set aside, even though it were equitable in its provisions. If she were of unsound mind at the time of the making of the will, the fact that the will was equitable in its provisions would not sustain the will; for, without testamentary- capacity, without the
14. Trial: instructions: conflicting instruction: effect. “While the fact, if it be a fact, that the will in question may appear unnatural or unreasonable, this alone should not be considered as evidence of an unsound mind; yet*240 you may consider such circumstance with all the other facts and circumstances in the case, in determining the soundness or unsoundness of the mind of Mary S. Workman.”
These instructions were inconsistent with each other. The first appeared in the 3d instruction; the second proposition, in the 9th instruction; and the last proposition, in the 11th instruction.
It is next urged that the court erred in its 24th instruction to the jury, in which it said:
16. wills : vaisoundness of mind: mental or physical weakness: instructions, “Mere mental or physical weakness is not unsoundness of mind, and you should not find the testatrix of unsound mind merely on proof of mental or physical weakness alone.”
. , ..... As an abstract proposition, this is true, but it is very misleading. Insanity involves mental weakness. Mental weakness may exist to a point where testamentary capacity ceases. What is meant by mere mental weakness, the court does not- define. If the court meant to say that mental weakness was not unsoundness of mind, no matter to what extent it is shown, and that mental weakness will not destroy testamentary capacity, no matter to what extent it is shown to exist, then the court is wrong. This was the very point at issue. Had mental weakness extended to a point where testamentary capacity ceased? Physical weakness would not incapacitate unless such mental weakness is shown as a resultant condition of the physical weakness. To say to the jury that mental weakness, no matter to what extent it involves the power of rational reasoning,
“Had Mary S. Workman, at the time she made the will in controversy, sufficient mental capacity to understand in a reasonable manner the nature and effect of her acts or the business she had under consideration, is the practical question for you to determine.”
The least we can say for these instructions is that they are confusing and misleading. Parties are entitled to have the law clearly expressed, so that the jury, not being lawyers, can know from the instructions what the rights of the parties are. under the law. The instructions should be so worded as to avoid confusion and to lead the minds of the jury to a proper understanding of the rules of law that guide them in their deliberations. The general rule, that the instructions should be read together and considered as a whole, is a rule that we do not now intend to depart from; but where inconsistent rules are stated in the instructions, and the jury are left to follow one rule or the other, — one presenting an unsound proposition of law, and the other a sound one, — it is impossible for the court to tell upon which they rested their judgment, or which guided them to their conclusion, and, therefore, we cannot approve the instructions on the whole and ignore these misleading and conflicting statements of the court.
It is next contended that the court erred in withdrawing from the jury the question of undue influence, and withdrawing from the jury all evidence tending to establish undue influence.
It seems that, at the time this will was executed, the testatrix owned considerable property; that Mrs. Zellhoeffer and her children lived close to and were frequent visitors at the testatrix’s home; that the daughter Bertha called the scrivener and directed him to bring blank deeds, and that he did so; that the will was drawn by the party summoned by the daughter; that, at the same time, he prepared for testatrix three deeds: one conveying to Ellen A. Zellhoeffer, her ■sister, Lots 7, 8, 9, 10, 11 and 12, in Block 68 in the town of Grand Junction; one conveying to Guy W., Bertha A. .and Forest L. Zellhoeffer, nephews and nieces of testatrix, the S. E. 14 of Section 3 and the S. E. 14 of Section 8, in Township 105 North, Range 52 West of 5th P. M., containing 320 acres; one conveying to Bertha Zellhoeffer Lots 4, 5, and 6 in the S. W. 14 of 33-84-29 West of 5th P. M., together with buildings and improvements thereon. The property in Grand Junction was estimated as worth $5,000; the land in South Dakota, $19,000. Deceased had about $7,000 in money. It therefore appears that a very considerable portion of her property was conveyed to the Zellhoeffer family at the time of the making of the will.
There are other errors complained of, but they are such as are not likely to occur upon another trial, and we leave the ease at this point. For the errors pointed out, the case is— Reversed.