186 Iowa 994 | Iowa | 1919
This action was twice tried in the district court, each trial resulting in a verdict against the validity of the will.
William McElfresh, the testator, was unmarried. He died about September 8, 1915. He was the owner of 80 acres of land and $2,000 to $3,000 in personal property. His only heirs at law are brothers and sisters, between whom this action is pending. He left a will, leaving his real estate to his brother Jesse and his sister Dora. Of his persona] property, he gave a legacy of $1,000 to his niece, Dora Carlton, and the remainder to Dora McElfresh.
The other heirs attack the validity of the will, alleging that the testator was mentally incompetent to execute a valid will; also, that such will had been obtained from him by undue influence, exercised over him by his brother Jesse
The issues were tried at the September term, 1916, of the trial court. The verdict having again been rendered for the contestants, judgment was entered thereon on September 29, 1916. Thereafter, on October 23, 1916, the proponents of the will filed a motion for new trial, which was overruled in January, 1917. Appeal was not taken until in May, 1917; and, as the time for the appeal from the judgment had then fully lapsed, the cause will, of necessity, be treated as coming to us on appeal from the ruling on the motion only. The grounds assigned for the motion were as follows:
“1. That said verdict is contrary to and not supported by the evidence.
“3. That said verdict is the result of passion and prejudice of the jury.
“4. The court erred in admitting evidence for the contestants over the objections of the proponent to the prejudice of the proponent, to which said proponent duly excepted.
“5. The court erred in sustaining contestants’ objections to evidence offered by the proponent to the prejudice of the proponents, to which ruling they duly excepted.
“6. The court ei'red in so writing and reading his' instructions to the jury as to confuse the jury and render it impossible to understand the law of the case; and unable to apply the facts to the law.
“8. The pleadings of the contestants did not set forth any cause of action whatsoever, and no petition was filed by them, and mere motion addressed to this court was filed in said cause by contestants, and no cause of action stated therein, and said motions so filed was by the contestants separately.”
The appeal is presented in a manner which is unusual, if not remarkable. The abstract, so called, is, in fact, a full and complete literal transcript of the entire record of the case, including, apparently, every paper filed therein, with their formal captions and the signatures of parties and counsel; also, the testimony of all the witnesses in ex-tenso, questions and answers, making up a volume of nearly 700 pages. This is followed by another volume of nearly 300 pages, styled “Brief and Argument.” Looking into this
If we were to assume that the nonexpert witnesses on either side showed themselves competent to speak upon the subject, and that the hypothetical questions submitted to the experts embody material facts which the testimony fairly tends to establish, it would follow, as a matter of course, that the question of the testator’s mental soundness was for the jury alone, and that its verdict, whether for proponents or contestants, must stand as final, in the absence of any showing of prejudicial error in other respects.
That the trial court did not direct a verdict for the proponents, and, upon setting aside the verdict for contestants, ordered a new trial, indicates that it was not fully satisfied of the lack of merit in the contest, but rather, that the issue of fact was so extremely doubtful that justice would more surely be effected by allowing the parties to be heard anew. The second trial was presided over by another judge of long experience, and he also was sufficiently impressed with the view that a case had been made for the jury, to deny proponents’ motion for a directed verdict, and to deny their further motion for a new trial after verdict had been returned.
Upon such a record, we think this court is not justified in disturbing the verdict and judgment below, on the ground of insufficiency of the evidence. There was evidence con
While, as we have before said, the appeal from the denial of a motion for new trial does not necessarily present for our consideration all of the assigned errors which could have been reviewed upon an appeal from the judgment, we have, nevertheless, examined the record as a whole, and have to say that the sufficiency of the evidence presents the one debatable proposition, and that none of the other assignments of ex'ror is such as, in any event, would require a re