143 Iowa 649 | Iowa | 1909
The preliminary statement already made indicates the general theory of the contest. The contestants introduced evidence tending to show: That in the latter part of 1905, or at the beginning of 1906, H. E. Porter, a lawyer of Lone Tree, prepared for the deceased
Y. The contestants complain of instructions five and seven, which were as follows:
(5) The first question for you to determine is: Did A. H. Brown make a will, subsequent to the will which has been admitted in evidence in this case and marked as Exhibit A ? To aid you in determining this question, you are instructed that any person of full age and sound mind may make a valid will, and you are instructed that the undisputed testimony in this case shows that A. II. Brown was of full age and of sound mind; and you are further instructed that under the laws of this State a will is an instrument executed by a person of full age and sound mind, for the purpose of disposing of his property after his death, which instrument must be signed by him in the presence of two witnesses, who must sign the same as such witnesses in his presence and in the presence of each other, and it makes no difference upon what part of such instrument said witnesses may sign, so long as they sign as witnesses as above instructed. Now, if you should find that the contestants have established by a preponderance of the evidence that the said A. H. Brown, subsequent to the execution of Exhibit A, executed an- instrument in writing substantially as claimed by contestants, disposing in whole or in part of his property, the same being executed in accordance with the laws, as set out in the instruction, for the execution' of a will, then you' will upon the point find that he executed a valid will subsequent to the execution of Exhibit A. The next question for you to determine is: Did said subsequent will, if any, contain a clause revoking Exhibit A ? In this connection you are instructed that if said will, if any, contained a provision substantially as follows: ‘Hereby revoking all wills by me at any time herebefore made’— that the same would constitute a sufficient revocation of the will introduced in evidence and marked as Exhibit A, and you are instructed that the burden of proof is upon*660 contestants to establish by a preponderance of the evidence that such a clause, or one of the same or similar import, was contained in said subsequent will, if' any, and, if contestants have not done so, then you will find for the proponent, and it will not be necessary for you to consider the case further.
(7) You are instructed that, in determining whether any instrument, if any, executed by the decedent, A. II.’ Brown, was a will, you will give no weight to any statement or declaration made by him to the effect that any instrument executed by him, if any, was a will.
Appellants complain that the effect of instruction No. five was to lay upon them a greater burden than the law imposed. We have already indicated our views in that respect in a preceding paragraph. The theory adopted by the court in this instruction is in strict accord with the contestants’ pleading. But it is urged by appellants that the effect of these two instructions together was to eliminate from the record the testimony of the witnesses Lutz and Younkin as to the declarations of the testator at the time he executed the 1906 will in. their presence. It is quite possible that a jury might have misunderstood the real effect of instruction No. seven. It deals with a fine line of distinction, and the court might very properly have pointed out the distinction in such a way as to avoid possible misunderstanding. It was also within the right of contestants to ask for an additional instruction, by way of precaution, to avoid possible misunderstanding. This precaution does not seem to have been deemed necessary at the time, either by the court or by contestants’ counsel.
We find no prejudicial error in the record. The judgment below is therefore affirmed.