55 Iowa 28 | Iowa | 1880
The evidence shows that at the time the will was executed the testator had become greatly reduced in strength, and was able to sign the will only by being raised up in bed for that purpose. The evidence of imbecility, however, is by no means satisfactory. Upon the trial the contestants made some effort to prove insanity. The wife of the testator in her testimony says: “My husband was crazy very often.” She tben proceeds to detail circumstances, but ber testimony in detail shows but little more in regard to the condition of the testator’s mind than that he was subject to fits of ill-temper.
The proponent insists that there is no evidence whatever tending to impeach the will, and that the verdict cannot he sustained.
We do not feel called upon to pass upon this question, because in the view which we take of the case it must he remanded for another trial, and the evidence upon another trial may be different.
After Mrs. Zack and others had testified to facts tending, as was claimed, to show the testator’s mental incapacity to make the will, the proponent was introduced as a witness, and a question was asked in these words; “ Did you notice any actions about him different from what he was in ordinary health?” To this question the contestants objected, upon the ground that it was “incompetent under section 3639 of the Code, and subsequent provisions, lor the witness is a party to the suit, relating to transactions between him and the deceased at or about the time of the making of the will in question.” The court sustained the objection, and the proponent excepted.
We may assume that it was expected by both parties that the witness, if he had been allowed to answer the question, would have stated that be observed no difference between the testator’s mental condition at the time he made the will and his mental condition prior thereto when in ordinary health. We have, then, the question whether, in a case where the issue is as to whether testamentary capacity has been impaired or destroyed by sickness, a non-expert who was well acquainted with the testator both in sickness and health, and had the care of him in sickness, can be allowed to state that he saw no difference between his mental condition in sickness, and his mental condition in health. In our opinion a non-expert may be allowed to so state. Such a statement would be a statement of fact, and would not involve any special knowledge or skill. But a non-expert may be allowed to give an opinion, even upon the question of insanity, if the opinion is given in connection with the facts upon which it is based. Denham’s Appeal, 27 Conn., 193; Dewitt v. Barley, 9 N. Y., 388; Clary v. Clary, 2 Ired., 78; Ashcraft v. De Armond, 44 Iowa, 229.
The appellee insists that the case cannot be determined upon its merits for want of an assignment of errors. But we find an assignment.
Reversed.