185 Iowa 218 | Iowa | 1918
The ultimate inquiry remains, whether the allegation that defendant is a person of unsound mind has been “satisfactorily proved upon the trial.” Code Section 3219. Since the mental condition at the time of the trial is controlling, were it conceded that, at that time, the defendant was of sound mind, and capable of protecting her property rights, it would become utterly immaterial if it were further conceded that, at some time in the past, the defendant had made a transfer of her property in such manner as to show that, at that time, she was not capable of protecting her property rights. If fully recovered at the time of the trial, the making of such improvident deed in the past would not justify the appointment of a guardian for her, and her past mental incapacity would afford no remedy, except that she
On the one side, we have testimony that tends to show lack of average mental capacity. There is testimony on the other hand disputing the first. This conflict we shall not attempt to settle. We shall first consider some matters which, on final analysis, exhibit no conflict.
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Before going into this, it is not amiss to point out that, as is not unusual in such contests, natural affection seems to be supplanted by a malicious desire to exaggerate and color. For illustration, throughout the testimony of all of the daughters and their husbands runs an utterly unjustified assertion that the old mother was filthy in habit and unnaturally indifferent to at least the physical well-being of her little children. The “expert” testimony runs true to'form. It bases an edict of insanity upon assumed things that have, in reason, no relation whatever to establishing lack of mental balance. It is the kind of testimony which, in type, gives an opinion that death ensued from a bullet wound because the deceased at one time raised Holstein cattle. The testimony given is not much less absurd. Dr. Kennedy testified, on cross-examination, that, on the assumption that the father had shown a discrimination between the children, the fact that the mother carried this out. shows she is of unsound mind, and that the witness had always thought people who discriminated between children were of unsound mind.
With this digression out of the way, we turn to some
An argument of lack of business capacity is builded upon the purchase of a house in Persia. It appears that the initial negotiations were not made by the defendant, but by one of her sons; and there is a claim that she fore-bore at all times to make such examination and inquiry as an ordinarily prudent person would make, before purchasing. It is a sufficient answer that it fairly appears the house was in good condition; that, before finally closing, she did make reasonable investigation; and that whatsoever part her son Henry took in the matter was at her instance. It appears without dispute she asked the seller what shape it was in, and he told her it was in good shape. It all sums up merely to the claim that the son talked to the seller first, and wrote out the check in payment, — at which time, however, the defendant was present; that the buyer talked with her when she was alone, and asked her if she didn’t want to go up and look at the property, and she answered she would be up there sometime to see it. He admits he had a talk with her, the day she came in to have .the papers made out; and it is the undisputed testimony of Henry that the mother talked with the seller about the property on the day she bought it, and told him she wanted him to furnish her an abstract of title down to her name, move the outbuildings onto the lot and shingle them, and pay all the unpaid taxes, and that the seller agreed to do so.
If she acted from resentment towards some of her daughters, it was justifiable, from her viewpoint, and at least sufficiently so as that the entertaining of the feeling is no evidence of delusion or want of mental capacity. These children tried in every way to emphasize upon the trial that the mother had always been practically a lunatic; that she was harsh and neglectful, and raised them in filth and dirt. The evidence discloses that there is no justification for either claim, and they admitted she was sane enough to become surety for some of them. It appears further that, during all the days of this trial, these daughters had nothing to do with this poor old mother on trial, and failed and neglected, if they did not absolutely refuse, to say one word of greeting or kindliness to her.
She- was able to state that her parents, during their life, had 40 acres, near Minden; that her son-in-law Putman has 160 acres, and her daughter Nancy, an 80-acre farm.
She remembers all the details connected with the marriages of her daughters, and gives the items of many small presents she made them. Speaking to the last visit she made one daughter, she says they went to Kingsley, 5 miles northwest ; that it was kind of misting when they left; that her daughter objected that she might stay a few days longer, or at least another day. But she had set her mind, and wanted to go, and was all ready. And she said she had made up her mind, and that she guessed her husband wanted to go to town anyway, as it was Saturday, and he would be busy on Monday, and she didn’t want to bother him. She says she didn’t blame Marie’s husband for bringing this lawsuit; that the girls sued her just as much as “him;” and she has the same feeling now towards them that she has against him; but she didn’t have that feeling against Marie before that. When confronted with an inquiry suggesting that she was abnormally angry with her husband at times, she responded they sometimes in the family, long years ago, had what she guesses happens in every family sometimes, but that she never had had any trouble with her husband.
She is able to say that her daughter Minnie married, five years after the death of the defendant’s husband, and that Minnie got her share of the property in February after the death of the husband; that Henry wound up the estate of hfs father, and divided the personal property by giving each of the children $950.
Speaking to a will she had made, she states that she went, herself, to have it drawn, and drove her husband’s old
Speaking to sending one of the boys to offer each of the daughters $1,500,'she goes on to say that some of the daughters “kicked.” Thereupon, she said, “nobody can have any,” and that they let it alone; that they should wait until she was dead, and that there might be more money; and if there was more, that they could divide it equally when she was gone.
At one time, her husband made her a deed. She states who the conveyancer was; that both she and her husband went to his office; that they got the descriptions from an old deed which they took along; that the deed was sent for record, and was returned to her.
She testifies that, the first year after the death of her husband, she rented the farm to the boys, and told them to improve it as they wanted to; and she would deed it over to them before she died; that they replied that this was all right, and they would take her word for it (and it appears that costly permanent improvements were put on by the sons). When asked if it were not the fact she had never done anything about managing the lands herself, and that Henry had always managed the property in every way, she answered, “Yes,” except that, during the first year after the death of her husband, she sat right there and helped them a little, and then told the son she would never do it again, — she couldn’t stand it any more; that, while she felt able to do it, she couldn’t talk good enough American, and that he could do it; that she lived on the farm two
Speaking to whether the-disposition of her lands was a natural one, she testifies that, while her late husband did not say he wanted the boys tó have more of the land than the girls, he did say the boys should have the land and the girls the money; that she and her husband had talked the matter over a long time, and he said the boys had had to work so hard, since their oldest boy got killed, and from the time they wore short pants; that they should have more than the girls, because he thought they had worked the hardest for the land; that she left the land to the boys because she wanted her husband’s will “done like he liked to have it,” and she understood, when she took the notes and made the deeds, that she was carrying out the request her husband had made before he died. When asked whether, in making her will, she was not following her own opinion and judgment, and that of no one else, she answered:
“No, sir, I was following ,my husband’s, — he told me the boys should have more. The rest of the will was my judgment, and I thought it was right to give Henry the 160 and Harry the 120, but they to pay the cash to the girls out of that.”
She is able to say that Mr. Eshelman, a banker, of Persia, drew the deeds, and that they were dated about March 10, 1914. She gives in detail when the notes for the lands were signed, and at what relative times signed by the sons and by their wives. She is able to state what rate of interest the notes draw, and that the notes were at home, and that they were not yet paid. She phrases what occurred as the beginning of a quárrel,'and says the banker, Eshelman, first put the notes among her papers, but, when
Much is made in argument of the fact that, as a witness, she first gave an account of the transaction of conveying the lands to her sons which is much more favorable to her than her account later given. This may tend to show lack of appreciation of the sanctity of an oath; but certainly, an attempt to bolster up one’s case is not evidence of want of mental capacity, or of inability to care for one’s property.
There is testimony which conclusively indicates that, though the daughters and their husbands now testify that the mother was always incompetent, they did not always entertain that opinion; and that there were some occasions in the past on which these parties did not doubt the sanity and business capacity of this defendant, though they now maintain she was never of sound mind. This testimony does not merely prove this substantive impeachment of the opinion evidence, but the narration by the defendant of what occurred suggests anything rather than incapacity to understand and guard property rights. She testifies that her son-in-law Warner Doyle felt he could not buy his farm, if someone didn’t sign a note with him; that he applied to his father, who told him he had some debts of his own, and was afraid he would have to pay the note, if he signed as surety, and, therefore, did not like to sign. It appears at this point, by inference, that the father finally did sign, because defendant says that Warner’s mother cried all night because she was afraid that her son would not pay the note and the father would have to pay it. She testifies her daughter, the wife of Warner, appealed to her, the defendant, to sign, because they wanted to buy the 220 acres where they now are; that they talked all the time he
Again, the witness remembers that her daughter Minnie had $950 out of the estate of the father as her share of the personal property, which was divided equally among the children; that she, the defendant, did not have this money belonging to Minnie, the first year; that, that year, it was in the bank, and she (witness) had charge of it. She testifies that she was appointed guardian by the court, and bought property with Minnie’s money, paying $1,400 therefor, using Minnie’s • money, as far as it went, the witness putting in $450; that, on the marriage of Minnie, defendant said she guessed she would have to give her her money again, and offered the property that had. been bought with the $1,400 instead, and Minnie agreed; that, thereupon, deed was made to Minnie by a named banker at Persia; that, on the marriage, she not only aided the daughter by buying comforts and sheets, but gave her the $450 which had been put in by witness in making the purchase of said property. She testifies she had had Minnie’s money two years, and felt she should pay some interest; that, when she turned the property over, she told her daughter she wanted to count interest on the money for the time she had it, and that the balance of the property above interest should be Minnie’s; that they didn’t figure the interest, but
We are constrained to hold that the motion for new trial should have been sustained, on the ground that the verdict is not supported by the evidence, and is contrary to