177 Iowa 716 | Iowa | 1916
“That said pretended will was procured by the undue influence of Emery J. Eveleth exercised over decedent in this: That at and for some time prior to the making of said pretended will, the said Oren- K. Eveleth was and had been suffering from a mortal physical ailment and was aged, helpless and infirm, and was in mortal fear of bodily injury from said Emery J. Eveleth; that,, while said debedent was in said mental and physical condition, the said Emery J. Eveleth took the said Oren TL Eveleth to his home in Sac City, Iowa, and kept him in his sole custody and control until the death of the said Oren K. Eveleth, and while said Oren K. Eveleth was in such custody and control, and in apprehension of physical injury from the said Emery J. Eveleth, and by reason thereof, the said Oren K. Eveleth made said pretended last will and testament, and that the same was not the free and voluntary act of the said Oren K. Eveleth.”
And in the third division of the objections, the foregoing statements are repeated; and, in addition thereto, it is charged, that proponent:
“Did threaten the said Oren K. Eveleth to have a guardian, or some other person, appointed to take charge of and manage the property of the said Oren K. Eveleth, unless he, the said Oren TL Eveleth, would make his last will and testament in substance as now offered for probate, and that, by reason of said threat and demands of the said Emery J. Eveleth, the said Oren K. Eveleth made said pretended last will and testament, and the same is not the free and voluntary act of said Oren,” etc.
The form of the objections seems to indicate a purpose to attempt to bring the case within Sullivan v. Kenney, 148 Iowa 361, hereinafter cited, and other cases. The argument of appellants assumes that they have established by the evidence the state of facts set up in the objections, but, after reading the record, we are of opinion that the evidence falls
There is no evidence that proponent ever mentioned the subject of a will to his father; the record does not show that proponent took his father tó his home. On the contrary, it appears that he did not do so. There is no evidence in the record to sustain the claim that proponent threatened his father to have a guardian appointed of his property, unless he would make a will such as he did make; no witness testified to any act or suggestion or word on the part of proponent, who was alleged to have exerted undue influence', looking towards an effort on his part to secure a will for his own benefit. At the time of the proponent's motion to withdraw this issue from the jury, there was no evidence that anybody had ever mentioned to deceased the subject of making a will. Perhaps we should leave this point for the present and go back to a brief history of the case.
It appears without dispute that testator was the father of nine children, two now deceased and one insane. The proponent, his oldest son, and the contestants, are his other living children. Testator and his wife were divorced in Wisconsin in 1886. The wife was awarded the custody of the children, and the property was divided. The wife died three years ago; deceased never went back to visit his family. Shortly after the divorce, deceased came to Sac County, Iowa, where he resided until his death; and the proponent came with him and lived with his father for some time. He and his father operated for some time a farm which the father bought. The other children remained with their mother in Wisconsin. One or two of the children who are contestants came to see the father in Sac County a time or two, and one
“He always had his own opinion as to how he wanted his business done, and it was done that way or it wasn’t done at all usually. I always thought he looked after his business successfully. ’ ’
He kept bachelor’s hall and lived by himself; he never remarried after coming to Iowa, and seems to have had few acquaintances and no intimate friends. At the time the will was signed, decedent was nearly 83 years of age. He had been sick for a short time, and when he signed the will, he was confined to his bed. The will was signed Saturday night, March 7, 1914, and he died the following Monday evening. The will gave the sum of $1 to each of the six contestants, and the remainder of the estate to the proponent. In prior years, he had manifested more or less feeling against all his children, including the principal legatee herein, and at times said that none of his children should have any of his property; yet he visited off and on with his son, the proponent. He manifested a love for his two grandchildren, the sons of the proponent, and there is some evidence that at times he felt kindly disposed towards two or three of his other children, contestants.
In the fall of 1913, deceased entered into a contract to
“After I examined him, I told Mm he had better go over to E. J.’s (meaning the appellee’s house). He said if he had a way to go he would go, and I told him I would take him over'in my car, which I did. It was my suggestion that he went; he offered no objection. His mental condition was good. He was taken to the house of Emery J. Eveleth and put in a warm bed and I attended him. ’ ’
Deceased had been getting better from the time he went from the rooming house to the son’s home, but, from overeating or some other cause, he had a relapse. He sent for Dr. Townsend, who went to see deceased at half past ten on that Saturday night and examined him. Testator then asked the doctor if he was afraid to tell him the truth, and the doctor informed him he was not. Testator then asked the doctor if he was going to die now. The doctor told him he could not tell him he was going to die, but that his age and condition were against him, and that, if he had anything in a business way to do, he had better attend to it now. To this, testator replied, ‘ ‘ I think that is plain enough, ’ ’ and he said, ‘ ‘ I want to make a will. ’ ’ He requested them to get Mr. Hart. They attempted to do this by phone, and also Mr. McCord, but were unable to secure either. Mr. Currie was found at his office, and the doctor went and brought Mr. Currie to the place where deceased was. When Mr. Currie came, deceased was propped up in bed, and he inquired if Mr. Currie was a lawyer, and said he had made up his mind to have a will made. Materials were brought, and the attorney asked him how he wanted to make the will. He said he wanted Ms property to go to Emery J. Eveleth, his son — pointing him out where he was standing in a door between the room where the old gentleman was and the next room. Deceased asked Mr. Currie how much he would have to give the others in order to make a valid will, and was advised about that by
We shall now notice some of the circumstances relied upon by appellant. Mr. Hart testified that, at the time he directed deceased to a rooming house, deceased said to him further that he did not want to go to proponent’s house because he was afraid of his son; that he said, “I am afraid he would kill me if I went out there. ’ ’ Another witness testifies that, six or seven years ago, when Emery operated the farm of deceased, proponent was mad at his father when the old man told him to get out. Another witness testified that,
As to the claim in regard to guardianship, the proponent did write to his sister in Wisconsin, March 1,1914:
‘ ‘ Dad is here now and has sold his .farm near Newell and has got everything he has in money, and I don’t think he is capable of looking after it. I am afraid someone will fool him out of it. He will be here a week and then he is going away and he don’t tell anyone where he is going, and I think he had ought to have a garden appointed to look after him. He is in a bad shape and just sets and sleeps nearly all the time. Now if you can come, we will fry and see what we can do. I don’t sopose the rest wood want to do anything and don’t know weather you do or not, but if we ever get any of it will have to look after it soon, for he is loosen his mind very fast and can’t hear anything hardly. Well if you come you had better come this week. Come right away and we will try and fix it some way. I don’t think he has long to live anyhow. Come if you can.”
It is thought by appellant that this letter shows that proponent was attempting to take advantage of his brothers and sisters. It might be, perhaps, inferred from this that proponent was looking after the matter in his own interest, but it also shows a disposition on his part to look after his father, who was old, and who had converted his property into money and negotiable paper, and also to have his sister assume the responsibility with him. It is also thought by appellant that the fact that deceased gave proponent all the property, when during his life he had expressed a dislike for him, is
We think the case is not as strong for appellants as some of our prior cases; for instance, Johnson v. Johnson, 134 Iowa 33. In that case, it was held that the evidence was not sufficient to go to the jury on the question of undue influence, and the holdings have been that on this issue; though, as said in some of the eases, undue influence is difficult to prove and must be proved if at all by circumstances, yet a case may not go to the jury upon inference alone. There must be substantive evidence showing acts that overcome the will of the testator, and the burden is upon the party charging undue influence, unless there is some fiduciary relation, which we hold does not exist in this case. See, also, upon this point In re Estate of Townsend, 128 Iowa 621, where the court said:
“The burden of proving undue influence, and that it operated upon the mind of the testator at the very time the
. . Neither advice nor solicitation, however earnest and insistent, will vitiate a will, unless it be further shown that the freedom of the will [of the testator] was in some way impaired or destroyed thereby.”
In Zinkula v. Zinkula, 171 Iowa 287, we said:
“To entitle plaintiffs to recover, they must establish by a preponderance of the evidence that the instrument in question does not express the mind of the testator. To this end, one of two facts must affirmatively appear; either that the testator, at the time of the making of the will, was mentally incompetent to make a will, or that his mind was so unduly influenced by his wife in the making of it that it did not express his will and purpose, but rather, the will and purpose of his wife. There is no substantive evidence in the record that such is the fact. There is no evidence that the wife and mother did or did not do anything in regard thereto. ’ ’
See, also, Brackey v. Brackey, 151 Iowa 99, where the cases are' reviewed and the rule stated.
Appellants cite Sullivan v. Kenney, 148 Iowa 361, 377;
The record is quite a long One,' and we have, perhaps, gone into the details of the testimony more fully than necessary. But, without further*discussion, we conclude that the court did not err in withdrawing the question of undue influence from the consideration of .the jury.
“Q. Who gave you directions as to how to draw this win?”
The answer, over objection, was:
“Oren K. Eveleth, the decedent, directed me how to draw the will. Nobody else was present taking any part in suggésting or saying how the will should be drawn. I didn’t see E. J. Eveleth in the room.”
The objection' was that this was not cross-examination.
3. This question was also asked of this witness on cross-examination :
The last question was objected to for the reason that it called for an opinion, and witness answered:
“I saw nothing to indicate any constraint.”
The argument is that this permitted the witness to pass upon the point to be determined by the jury. But we think the exception is not well taken. The witness was present and saw the deceased, and there are many times where it is difficult for a witness to describe so that a jury will get the impres
Complaint is also made by appellants because the two doctors were permitted to answer the following question:
This evidence was offered on the question as to the mental capacity of deceased. Both these witnesses were expert witnesses. One of them gave his opinion from a hypothetical question, and his answer was founded upon the entire life history of deceased; and the other witness, Dr. Townsend, was also a witness to the will. As we understand counsel for appellant, they concede that the case of In re Overpeck’s Will, 144 Iowa 400, at 405, is against their contention, but
4. The contestants offered an instruction in this form:
We think there was no error in the refusal to give the instruction. The letter was in evidence, and the proponent’s explanation of some of the statements as to the reference to his father’s mental condition was proper to be considered by the jury. But it was not the duty of the court to call specific, attention of the jury to this evidence as distinguished from other evidence in the case. In some cases, it has been held improper for the court to emphasize or give undue prominence to evidentiary facts. See Middleton v. City of Cedar Falls, 173 Iowa 619; Whitman v. Chicago, G. W. R. Co., 171 Iowa 277.
It often happens that letters or other documents con-
“It has never been claimed by contestants, nor urged by proponent, that the record contains any evidence justifying fear of death at proponent’s hands.”
And they state, also, that testator did entertain that fear, and gave public expression of it. Appellants’ position is somewhat inconsistent here. This matter seems to have been given but slight attention on the trial of the case. There is little, if any,.medical testimony on the question of delusions. It is.said by appellants that the refusal to give this Instruction 10 was error,'because contestants had not pleaded that the will was the result of a delusion, and there was no evidence that testator was laboring under a delusion, or that the making of the will was influenced thereby. But the objection was that, at the time of the .making of the will, deceased was of unsound mind and not competent. But we think, if there was any such delusion, there is not anything to show that it in any manner entered into or controlled the making of the will. To avoid the will, the delusion must in some manner relate to and be the reason for the making of the will in the manner in which it was made. In this case, if testator labored under a delusion such as claimed, the natural tendency would be for him not to make his son the recipient of his bounty. It is not claimed by appellants that there was any delusion in regard to the other children who were disinherited by deceased. The question of the soundness or unsoundness of the testator’s mind at the time the will was made was fully and fairly submitted by the court to the jury. As we have already stated, there was no evidence that decedent executed the will because he was in fear that his son, the proponent, would kill or injure him. We think the entire
Without further discussion, it is our conclusion that, upon the entire record, contestants have had a fair trial, and that there is no prejudicial error in the record, and the judgment' of the district court is therefore — Affirmed.