146 Iowa 6 | Iowa | 1909
An instrument purporting to be the last will and testament of Alexander' Speer was admitted to probate in the district court of Jasper County on February 17, 1902. It purported to have been executed on the 3d day of the same month, and it appeared that the testator died on the 6th. By this instrument the testator, who was without issue, left his property to defendant, his surviving widow. In August, 1906, within less than six months of the expiration of the statutory period for instituting action to set aside the probate of this instrument, the plaintiffs, William C. Speer, a brother of testator, and John M. and Samuel J. Black,, his nephews, instituted this action to set aside said probate on the ground that the instrument purporting to be a will was admitted to probate without any contest, and that it was not the last will and testament of Alexander Speer, for the reason that it was procured by the fraud and undue influence of defendant, the sole beneficiary therein, and that said testator was of unsound mind at the time said instrument was executed, and on the further ground that said testator was unconscious and in such physical condition at the time said instrument purports to have been exeeutéd by him that he could not sign the same, and never did sign the same, so that it is not his will. We find no evidence in this record
Mere mental weakness, not due to mental disease, but solely to physical infirmity, does not constitute mental unsoundness. Hanrahan v. O’Toole, 139 Iowa, 229. On the other hand, it is well settled that there may be testamentary incapacity without actual insanity or unsoundness of mind. Manatt v. Scott, 106 Iowa, 203; Garrison v. Hubbard, 110 Iowa, 7. But mere weakness of mental power will not render a person incapable of executing a will. It is not necessary that he should be competent to make contracts or transact business. Old age and failure of memory do not of themselves necessarily take away a testator’s capacity to dispose of property. Perkins v. Perkins, 116 Iowa, 253. There is nothing in this case to bring it within the case of In re Wiltsey’s Will, 135 Iowa, 430, where it appeared that relatives in attendance upon testator at the time the will was executed took advantage of his lack of mental capacity due to sickness to practically dictate to him the disposition which he should make of his property. In Duggan v. McBreen, 78 Iowa, 591, there was affirmative evidence to show that testator was in confusion as to the person and objects which he would reasonably have had in mind in an attempt to dispose of his property.
Here the disposition was not complicated, and there is nothing to indicate that the execution of the will was not simply the carrying out of a plan previously and definitely entertained, so that the only mental capacity necessary to be exercised was that of determining whether or not he should make a will in that form. We are satisfied that the evidence as admitted by the court did not present such a case as to justify the submission to the jury of the question whether testator at the time this instrument was
The testimony of witness Dibbel that, when he saw testator on the day on which the will was executed, it seemed to be hard work for him to breathe, added nothing to the statement already made that the manner of his breathing “seemed to be labored, heavy.”
A portion of an answer of witness Thomson, in which he stated that, when he saw testator on the day on which the will was executed, he “could not indicate that he could understand what I said to him,” was properly stricken out as a mere inference, and, if it had been allowed to stand, could.not have added any weight to the other- testimony of the witness on the same subject.
An objection to a question to the same witness as to whether the recognition of the testator at this time was the same as his recognition in good health was properly sustained, for the reason that the question was altogether
III. One James Martin, deceased when the case was tried, was an attesting witness to the will. Plaintiffs offered to show that said Martin, immediately after attesting the will, made declarations to the effect that testator had waited too long, and that he (Martin) was sorry he had signed the will as a witness thereto, and that if he had it to do over again he would not do it, and that testator did not know what he was doibg. The court refused to receive this evidence, and appellants assign this refusal as error. The offered evidence was clearly incompetent as hearsay, unless the fact that Martin was an attesting witness rendered it competent. The argument is that the validity of the will is presumed to stand, in the absence of other evidence upon the faith and credit given to the attesting statement of Martin that testator signed it, and that Martin’s attestation therefore stands as affirmative evidence of a fact, and his declarations inconsistent with his attestation should be received to impeach its effect. We may concede that the mere formal difficulty of the want of a preliminary question to Martin as a witness calling upon him to say whether he made such a declaration in order to lay the foundation for the impeaching testimony ought not to stand in the'way of the receipt of the impeaching evidence, if it is properly impeaching. There are analogies for dispensing with such formal step where it is impossible by reason of death or absence of one who would otherwise be a witness. See, for instance: Felder v. State, 23 Tex. App. 477 (5 S. W. 145, 59 Am. Rep. 777); Mattox v. United States, 156 U. S. 237 (15 Sup.
There is another view which to our minds is controlling. The statute provides that a will, to be valid, must be in writing, signed by the testator, and “witnessed by two competent persons.” Code, section 3274. So far as appears, testator complied with the requirements of the statute by expressing his will in writing, by signing such writing, and by having two competent subscribing witnesses affix their signatures to a proper attesting clause, reciting the execution of the will in their presence by testator with the declaration that it was his last will and testament, and their subscribing as witnesses at his request and in his presence. So far as appears, testator died in the belief that he had made a valid will. It is now proposed to invalidate that will by proving that one of the persons who signed it as witness afterwards made random declarations to the effect that he thought testator not to have been capable at the time to execute a will. If a subscribing witness may defeat the very purpose for which he is requested by the testator and authorized by law to affix his signature to the attesting clause, by simply making general statements indicating his belief that the testator was not of sound or disposing mind, which declarations may be proven in his absence or after his death and years after they were made, then another peril is added to those already surrounding the exercise by living persons of the statutory right to dispose of their property by will. This can not be in accordance with the policy of the law. It can not have been the purpose of the Legislature in providing for subscribing witnesses to make the persons thus chosen by the testator competent to defeat his intention by such random declarations.
Appellants’ contention is not, however, without support in authority. Counsel have cited five cases, and we
An exception to this [the hearsay] rule has been con- • tended for in the admission of the declarations of a deceased attesting witness to a deed or will, in disparagement of the evidence afforded by his signature. This exception has been asserted, on two grounds: Eirst, that as the party offering the deed used the declaration of the witness, evidenced by his signature, to prove the execution, the other party might well be permitted to use any other declaration of the same witness to disprove it; and, secondly, that such declaration was in the nature of a substitute ■for the loss of the benefit of a cross-examination of the attesting witness, by which either the fact confessed would have been proved, or the witness might have been contradicted, and his credit impeached. Both these grounds were fully considered in a case in the exchequer (Stobart v. Dryden, 1 M. & W. 615), and were overruled by the court: The first, because the evidence of the handwriting, in the attestation, is not used as a declaration by the witness, but is offered merely to show the fact that he put his name
This section is omitted from the text of Prof. Wig-more in his (the 16th) edition of Greenleaf’s work.
We reach the conclusion that the court properly excluded the offers of proof as to the declarations of Martin, the deceased subscribing witness.
The other witness, a minister to whose congregation the testator belonged, was asked whether testator on the date of the execution of the will, but at a different time on that day, was capable of transacting ordinary business and capable of intelligently disposing of his property. These questions were open to the same objections already indicated as to proposed testimony of the other witness. Incapacity to transact ordinary business, due to physical weakness, would surely not be sufficient to sustain an opinion that the testator was incompetent to make a will; and the testator may have been incapable, by reason of temporary stupor resulting from disease, of intelligently disposing of his property at that particular moment, although at another time during the same day he was sufficiently intelligent and conscious to exercise his judgment' with reference to such a matter. For the reasons already indicated, we do not think the opinions of this witness with reference to the condition of testator two days after the will was executed were entitled to consideration. In short, we have a case where a man suffering from disease, but of perfectly sound mind so far as the evidence tends to indicate, was at times conscious, recognizing those about him and fully aware of his conditions and surroundings, while at other times he was in a stupor or apparently asleep, and we think that the opinion of a witness based upon the testator’s condition at a time other than that at which the
The action of the trial court in- directing a verdict for defendant and entering judgment thereon is affirmed.