135 Iowa 123 | Iowa | 1907
There are thirty-eight assignments of error, all of which are argued hy appellants. As counsel have ignored part of the rules in the preparation of their brief, we shall consider only such errors as require attention in view of another trial.
VII. In referring to the opinion of the non-expert witnesses, the instruction reads: “ These opinions were based upon their personal knowledge of the testatrix, and upon her acts and declarations known to them. You will carefully consider the facts and cir-_ _ cumstances detailed by them, and give the various opinions of said witnesses such weight as you deem them entitled to, taking into consideration the knowledge, or means of knowledge, observation, interest, and candor, or lack of same, as shown by said witnesses while upon the stand. It does not follow that, because a witness, expert or non-expert, has testified that the testatrix was of sound or unsound mind, ,you should so find; but you should take such opinions into consideration, and give to them such weight and credit as you deem them entitled to, and there
There is no doubt that the latter looked after her business for her, such as she had, and checks on the banks were signed “ Mary L. Murphy, by W. P. Murphy ”; but there is nothing in the record to indicate that he did more, or otherwise than to carry out her instructions. Indeed, in handing his sister the check for $200. mentioned above, he disclaimed any part in it himself. For all that appears, he did no more than perform services which any child might be called, upon by a parent to do. The mere fact that -he looked after some business transactions for her, or signed her name to checks for her, did not constitute him her confidential agent in any such sense as to justify the inference that provision for him in the will was induced by undue influence. Such presumption only arises from relations of implicit confidence and trust, such as guardian and ward, attorney and client, priest or other spiritual adviser, and those looking to him for advice, and the like, in which the temptation and opportunity for abuse would be too great, if the beneficiary were not required to make affirmative proof that he did not betray the confidence placed in him, nor so use his influence to coerce or mislead the testator, or otherwise obtain an undue influence over him. The same rule might apply to the relationship between members of the same family, ordinarily one of trust and confidence, were it not for the fact that a testamentary disposition in favor of relatives by consanguinity is regarded as natural and just. In no instance to be found in the books has undue influence been presumed merely from the relation of parent and child, husband and wife, or any other relation either of consanguinity or affinity. Such in
Something more than merely the relation of parent and child, and an opportunity for unfair dealing, must be shown. It must appear that the parent has been imposed on in some way, or overcome by the practices of the child to the advantage of the latter, before the burden of proof can be shifted. In re Will of Martin, 98 N. Y. 193. See, also, Tyler v. Gardiner, 35 N. Y. 559; Armstrong v. Armstrong, 63 Wis. 163 (23 N. W. 407); Sechrest v. Edwards, 4 Metc. (Ky.) 163; Dale v. Dale, 36 N. J. Eq. 269; In re Will of Nelson, 39 Minn. 204 (39 N. W. 143); Latham v. Udell, 38 Mich. 238. See notes to In re Hess's Will, 48 Minn. 504 (51 N. W. 614, 31 Am. St. Rep. 665), and Richmond's Appeal, 59 Conn. 226 (22 Atl. 82, 21 Am. St. Rep. 85). And such imposition or improper practices, in the absence of any evidence of dependency, cannot be inferred from acts entirely consistent with the proper observance of filial duty. The evidence was not such as to shift the burden of proof, and the instruction ought not to have been given.— Reversed.