148 Iowa 476 | Iowa | 1910
Appellants assign forty-six erroi’s, and it is manifest that it would be impossible in the course of an ordinary opinion to consider each and every assignment; nor is it necessary to do so, for many of them are not argued, and those argued may well be grouped into a few classes, or divisions for the purpose of an opinion. The chief contentions made for appellants arc that the verdict has no support in the testimony; that the court erred in its rulings on evidence; erred in i'ts instructions given to the jury; and in refusing certain of those asked by proponents.
I. Testator was a German by birth, and, as near as can be told,' was sixty-eight years old at the time of his death. He died June 12, 1907, leaving his wife -and six children surviving. His heirs were all of age at the time of his death. The will was executed on June 2, 1907, while testator was ill, and was admitted to probate without appearance or contest. This action was commenced June 9, 1908, to set aside -the probate of the will and the will itself because of testator’s mental incapacity and for the alleged undue influence of certain of the devisees and legatees under the will. The latter issue was nof submitted to the jury and need not be considered, save as it may 'bear upon certain rulings of the court made during the trial.
The will gave his widow a life estate in all his property in lieu of dower, provided she remained unmarried, and of the remainder he gave plaintiff the sum of
II. Something like thirteen rulings on the admission and rejection of testimony are challenged; but we shall only notice those which are deemed important or con
III. The complaints regarding the instructions largely revolve around the central thought advanced by defendants’ counsel to the effect, that, if testator was unsound of mind, his insanity was not chronic, but partial. The testimony offered by contestant tended to show chronic or general insanity, and not partial with lucid intervals; but, even were this not so, the trial court instructed that the burden was upon contestant to show testator’s mental unsoundness at the very time the will was executed.
Going now to the specific instructions complained of, we shall notice but a few of them. Others which are complained of have been distinctly approved by this court many times and need not be noticed. Paragraph 5 of the instructions reads as follows:
As opposed to this, defendants asked the following:
Par. 3. Evidence has been introduced showing that the testator, John George Montagne, was adjudged insane, by the commissioners of insanity of Cherokee county, Iowa, in the month of June, A. D. 1900, and that he was thereafter taken to the state hospital for the insane at Clarinda, Iowa, for treatment, and the undisputed evidence further shows that the testator was discharged from the state hospital as cured. You are therefore instructed that no presumption of insanity at the time of the making of the will in question could be predicated or indulged in upon this adjudication, for, while insanity, when once proven, is presumed to continue until the contrary is shown, the fact that the testator was discharged cured rebuts the presumption of insanity, and the said testator is forever afterwards presumed to be sane until the contrary appears. Therefore you • are instructed that the fact that the said John George Montagne was adjudged insane in the year 1900 will not now relieve the plaintiff of proving his insanity at the time of the execution of the will in question.
The difference between the one given and the one asked is this: That in the one given the jury is authorized to consider the adjudication of insanity in arriving at its conclusion regarding testator’s condition of mind when the will was executed, while in the one asked this determination is eliminated. The instruction given seems to us to be correct. The fact of insanity at one time being
Instruction No. 7 reads:
This instruction is .vigorously assailed. It appears to be in accord with our own cases and is sustained by numerous precedents from other jurisdictions. Manatt v. Scott, 106 Iowa, 216; In re Wharton, 132 Iowa, 723; Hardenburgh v. Hardenburgh, 133 Iowa, 6; Stutsman v. Sharpless, 125 Iowa, 341; Smith v. Ryan, 136 Iowa, 339; Wallen v. Wallen, 107 Va. 131 (57 S. E. 596); Graham v. Deuterman, 206 Ill. 378 (69 N. E. 237); Knox v. Knox, 95 Ala. 495 (11 South. 125, 36 Am. St. Rep. 235); Peck v. Carey, 27 N. Y. 9 (84 Am. Dec. 226); Rasdall v. Brush, 31 Ky. Law Rep. 1138 (104 S. W. 749); Sim v. Russell, 90 Iowa, 656. It will be observed that the instruction specifically says that inequalities in the will will not alone warrant the presumption of mental incapacity. This qualification makes the instruction invulnerable to attack.
Instruction No. 8 given by the court reads as follows:
This instruction is also challenged. We think it is correct. In Underhill on Wills p. 134, the learned author says: “But a person who is permanently insane may, to all outward appearances, act and talk in the most rational manner, and yet there be no real abatement of his malady. He may be just as unsound in his calmer mood as in ■his fits of raving.” Judge Cooley, in People v. Garbutt, 17 Mich. 16 (97 Am. Dec. 162), in writing the opinion of the court, thus expressed himself regarding this matter: “Those questions which relate to the discovery and proof of insanity in criminal cases are perhaps the most difficult of any with' which courts and juries are compelled to deal. Mental disease is .itself so various in character, so vague, sometimes, in its manifestations, and so deceptive, especially in its early stages, and its causes are so subtle and so difficult to trace, that the most experienced experts are sometimes obliged to confess that, however careful and thorough their investigations, they still prove unsatisfactory, leaving the mind not only in a condition of painful uncertainty upon the principal question whether mental disease ¡actually exists, but when its actual presence is demonstrated, failing utterly, in many cases, to trace it to any sufficient cause.” These quotations lucidly state a rule which is well known, not only, to all alienists, but
Other instructions are challenged, but they seem to be in accord with our previous decisions and need not bo further noticed. Defendants asked ten instructions, none of which were given in the exact terms in which they were written. In so far as they are correct, they were embodied in the charge as given.
Counsel rely largely upon Kirsher v. Kirsher, 120 Iowa, 337, and Glass v. Glass, 127 Iowa, 646, in support of the appeal. These oases do not run counter to any views herein expressed, or to any of the rules given by the trial court in its charge. The burden was not cast upon defendants to show that testator had recovered his sanity. On the contrary, the. trial court" clearly put this burden upon the plaintiff.
The' record is singularly free from error, and no good ground is shown for a reversal.
The judgment therefore must be, and it is, affirmed.