190 Iowa 451 | Iowa | 1920
— W. -M. Champion, a resident of Mabaska County, died testate on August 30, 1918. On August 23d pre
The will was promptly filed for probate by Edgar I. Rat-cliff, the executor named, and, on September 17, 1918, Mattie Prince, Leila A. Nicholson, Libbie Coxe, Winnie Phillips, and Altha Phillips filed objections to its admission to probate, upon the grounds that it was not witnessed or published as required by law; that, at the time of its execution, testator was not of sound and disposing mind, but was incapacitated to- make a valid will; and that its execution was procured by fraud, duress, and undue influence. Later, Millie P. Ehinehart and Nell Plickinger, relatives, appeared, and joined in these objections to the probate of the will.
Testator, after the death of his wife, which occurred about 20 years before the will was executed, resided upon his old home farm alone, or with tenants living thereon. All of the legatees named in his will, except Ratcliff and Olena Johnson, are either his relatives or those of his deceased wife.
¿SSSfLÍ” proper retama. I. H. B% McCoy, a member of the law firm of McCoy & McCoy, of Oskaloosa, appeared with other attorneys for proponent. Contestants filed objections to his appearance or participation in the trial on behalf of the proponent. The ground of these objections was that one attorneys for contestants, a few days before the ease had been assigned for trial at a prior sitting of the court, sought to employ McCoy & McCoy and Burrell & Devitt, also of Oskaloosa, to assist in the trial of the case on behalf of contestants. A conference was had between Mr. Burrell and John N. McCoy of said firm, and T. J. Campbell, attorney for contestants, in which the nature of the case was discussed, and a proposition of employment submitted to the former. The Oskaloosa attorneys were .unwilling to accept employment upon the terms proposed, but the matter was left open for further negotiations. Later, the attorneys for contestants notified McCoy & McCoy and Burrell & Devitt that they had decided not to employ them. Neither John N. McCoy nor Burrell & Devitt appeared upon the trial, and the latter firm had no connection with the case. The affidavits of T. J. Campbell, who represented the contestants, and of John N. McCoy and W. C. Burrell, on behalf of the proponent, were submitted. These affiants differ somewhat as to the extent to which the facts relied upon by counsel for contestants were revealed to McCoy and to Burrell. Campbell affirms that he stated in detail what he expected that each witness, so far as he had interviewed them, would testify, pointing out the strong and weak places in the contestants’ case. The other affiants declare that they declined to accept employment upon the terms proposed by Campbell, and that the facts repeated by him consisted almost entirely of matters of record. The court overruled the objec
II. Mattie Prince, one of the sisters of testator, testified as follows:
Olena Johnson, called in rebuttal by proponent, over the •objection of counsel for contestants that she was incompetent, under Section 4604 of the Code, to do so, was permitted to deny the above transaction. This ruling by the court is complained of. If is true, as we have frequently held, that a witness testifies in regard to a personal transaction no less when he denies than when he affirms a transaction with a party deceased. In re Estate of Brown, 92 Iowa 379, 388; Garretson v. Kinkead, 118 Iowa 383, 385; In re Will of Winslow, 146 Iowa 67; Hart v. Hart, 181 Iowa 527; Tucker v. Anderson, 172 Iowa 277; Kauffman v. Logan, 187 Iowa 670. But the statute creates an exception where the executor, administrator, heir-at-law, legatee, or devisee who is a party testifies in his or her own behalf. Wood v. Brolliar, 40 Iowa 591; Canady v. Johnson, 40 Iowa 587; Bailey v. Keyes, 52 Iowa 90; Ivers v. Ivers, 61 Iowa 721; Ridler
III. Nancy Champion, the surviving widow of testator’s brother, and Leila A. Nicholson, one of the contestants, were asked by counsel for contestants whether, in any of the conversations had by testator in their presence, during his last illness, he talked coherently and connectedly. The answers to these questions were excluded, upon objection of counsel for appellee. The witnesses were, however, later permitted to testify in detail as to their observation of testator, and as to his'ability to coherently carry on a conversation. The testimony was doubtless as favorable to contestants as the most favorable direct answer to the above questibns would have been. Zinkula v. Zinkula, 171 Iowa 287.
The exceptions to Paragraphs 2, 11, and 12 of the charge are without merit. We find no evidence whatever in the record tending to sustain the claim of duress or of legal fraud, except in so far as the same is involved in the issue of undue influence. The testator is not shown to have been afflicted with a progressive mental disease, nor does the evidence indicate that his mind was permanently impaired. No instruction embodying this theory of appellants’ was submitted by the court, or requested. The defendant was suffering from a disease of the heart. It is not claimed that he was afflicted with senile dementia or other mental disease.
Paragraph 17% specifically and fully covers the matters which appellants claim were erroneously omitted from Paragraph 12.
Likewise, the exception to Instructions 19 and 20 cannot be sustained. The record reveals no evidence from which the jury could have found that the several parties whose names were omitted from these instructions exercised any degree of influence over testator. During his last illness, he lived at the Johnson home, and was cared for by the members of th¿ Johnson family and certain of his relatives. Ella Galbreath, a niece of his deceased wife’s, one of the parties referred to, spent some time at the Johnson home, assisting to care for Mm. The evidence does not, however, disclose that she was more than ordinarily attentive to Mm, and her conduct seems to have been wholly disinterested, and for the sole purpose of caring,for and ministering to Ms wants.
Some other matters are discussed by counsel, all of which have been given careful consideration, although not separately mentioned herein. We find no reversible error in the -record, and the judgment of the court below is, therefore, — Affirmed.