Perkins v. Perkins, 109 Iowa 216

Perkins v. Perkins

109 Iowa 216 | Iowa | 1899

Deemee, J.

Proponent is tbe widow of Edward Perkins, deceased, wbo died on February 19, 1897, aged seventy-four years. Tbe contestants are tbe sons and daughters of deceased by a former wife. Tbe will involved in this litigation was executed on tbe 15th day of February, 1897. Prior to that, but during tbe same year, deceased bad executed other wills, which were practically tbe same as tbe one now contested. Proponent was a witness in her 1 own behalf, and was asked this question, “State what {reason your husband gave for not wanting to leave bis property- to bis children.” An objection on tbe ground that it was immaterial, irrelevant, and incompetent was sustained. Appellees make no question but that a testator’s previous declarations are admissible in support of a will which is impeached, showing dislike or affection for tbe natural objects of bis bounty, or for those favored by him in tbe alleged will. Indeed, that question is put at rest by In re Hollingsworth’s Will, 58 Iowa, 528; Dye v. Young, 55 Iowa, 435; Bates v. Bates, 27 Iowa, 110; Stephenson v. Stephenson, 62 Iowa, 165, and other like cases. In support of'the ruling of tbe trial court it is contended, however, that tbe evidence was inadmissible because of tbe provisions of section 46Ó6 of the. Code. This position is sound. While tbe witness is not asked directly as to what her husband said to her personally, yet that is tbe fair inference from tbe question propounded, and we should not reverse simply for the *218reason that it might have referred to a statement made by others in the presence of the deceased. In support of the ruling, see In re Brown's Estate, 92 Iowa, 319; Palmer v. Palmer, 62 Iowa, 204.

II. The contestants were permitted to testify, over the objections of proponent, as to the amount of money or property 'advanced to' them by their father prior to his death'. 2 Such evidence was admissible. Sim v. Russell, 90 Iowa, 656.- Moreover, the proponent had testified as to certain decla.rations said to have been madel by the deceased with reference to having made certain advancements to his children before making the will under consideration. The evidence now complained of was properly .admitted in rebuttal of this statement. While it does not directly show that the deceased made no such statements, it was properly admitted as the best evidence obtainable tending to show that no such statements were made.

«III. Proponent offered in evidence certain account books kept by the deceased, showing advancements made 3 to his children, the contestants, from time to time. The entries showing these advancements were proven to have been in the handwriting of the deceased, and the books were fully identified. Objections to these entries were sustained. While it is, no doubt, true that these books of account were inadmissible, under our statutes relating to the admission of books of account, yet the entries therein made were written declarations of the deceased with reference to the disposition of some of his property before executing the will, and as such they were admissible. This is especially true in this case, for the other evidence tends very strongly to show that the reason why he did not remember his children was due to the fact that he had already made provisions for them. Bever v. Spangler, 93 Iowa, 516, and cases cited. These written declarations of the deceased to the effect that he had made certain advancements to his children should have been admitted in evidence for the purpose *219of showing the state of his mind at the time he executed the •will. True, they may not prove that the advancements were in fact made, but the evidence was quite material in considering the condition of the deceased’s mind, and the feelings which prompted; him, at the time he made his will.

IV. Lastly, it is insisted that the verdict is not supported by the evidence. In view of a retrial, it is not our nsual custom to discuss such a question. It may not be out of place to say, however, that, if the contestants have no other or different evidence from that adduced upon the trial in the district court, they will. save themselves trouble and expense by withdrawing their objections to the probate of the will. A careful reading of all the evidence fully satisfies us that the verdict has not sufficient support in the evidence. For the errors pointed out, the judgment of the •district COUrt ÍS REVERSED.