161 Iowa 122 | Iowa | 1913
What purports to be the last will and testament of Henrietta Rath, deceased, was, upon due notice, admitted to probate in the district court of Crawford county on September 12,1905; and this action to set aside -the probate thereof, and to have the will declared null and void, was commenced October 29, 1909. The grounds for setting it aside, as stated in the petition, were:
Plaintiff .further states that the said paper so admitted to probate was not the last will and testament of the said Henrietta Rath, deceased, for the reasons following, among others: That said will was procured by the undue influence of Rosa Foss, Ernest Foss, and Annie Foss, all three of whom directly exercised such undue influence over said decedent in the making of said will that it was not her voluntary act and free will. That at the time of the writing of said will, and for some time prior thereto, said decedent was subject to undue influence of said parties named, and that undue influence resulted directly in the said decedent making the said purported will, and the said will was the product of the undue influence, coercion, and duress of said parties named. That said decedent at the time of the writing and signing of said paper and for some time prior thereto was not of sound and disposing mind and memory and capable and able to make a will, nor of sufficient mind and memory to intelligently dispose of her property as contemplated by law, nor of sufficient capacity mentally to make a lawful will.
The answer admitted the probate of the will and denied each and every other material allegation in the petition.' Upon these issues the case went to trial to a jury, with the results before stated.' •
The last of these propositions is not argued separately, but it is so bound with and related to the issue of incapacity that we may assume it is in the ease. It may as well be said at the outset that we find no sufficient testimony to take the issue of undue influence to a jury. Whether or not there was enough to carry the issue of mental incapacity to that body, we shall consider in another paragraph of this opinion.
I. For appellant, it is contended that sufficient testimony was adduced to take the question of the making of the will to a jury. In other words, it is argued that there is testimony showing, or tending to show, that testatrix never, in fact, executed the paper which, it is claimed, is her last will and testament. Upon this proposition, appellee asserts: (a) That no such issue was made by the pleadings; (b) that there is no testimony to overcome the presumption arising from the probate of the will that it was properly executed.'
The will, which was admitted to probate, bears date January 24, 1902, and it is witnessed by Albert Hellsley and Chas. C. Hemming; but there is no statement except by inference as to when the will was in fact witnessed by them. Inferentially, perhaps, it may appear that it was witnessed on the day it was signed. It disposed of testatrix’s property, in the following manner:
I give devise and bequeath to Franz Rath whom I have raised the sum of ten ($10.00) dollars to be paid to him out of my estate by my executor hereinafter named he to have and to hold the same forever.
*126 I give devise and bequeath to Annie Voss daughter of Ernest Voss the sum of one thousand ($1,000.00) dollars out of my estate, to be paid by my executor as soon as can be done after my decease, she to have and to'hold the same forever.
All the rest residue and remainder of my estate after the payment of legacies hereinbefore bequeathed, I give devise and bequeath in manner following: To my daughter Lena Wendt wife of John Wendt one-seventh (1-7) of the remainder of my estate, and to my daughter Rosa Voss, wife of Ernest Voss, six-sevenths (6-7) of the remainder of my estate each to have and to hold (the respective 1-7 and 6-7 of real and personal estate remaining and bequeathed to them) the same forever.
Without objection, Frank (Franz) Rath was permitted to testify, as follows:
. •. . My grandmother, Mrs. Rath, did not understand any English. During the month of January, 1902, I stayed with her, taking care of her because she was sick. I wasn’t of age then. I was there three months. I was there all the month of January, 1902. I know Albert Hellsley and C. J. Kemming, or C. C. Kemming, Charles C. Kemming. They were never in my grandmother’s house any time during the month of January, 1902. No will was made by my grandmother during that month. I was there all the time taking care of her except two afternoons I was with my uncle to town. Those two afternoons were quite in the first part of the month.
On cross-examination, he said:
. . . I say this will was not made in January, 1902. I am pretty sure about that. I am pretty positive that this will was not made when it purports to have been made. It wasn’t made when it purports to have been made, and I know it wasn’t because there was nobody there to make it. I just stayed there and camped right there by' it. I never came away except the early part of January. I was away two days, not hardly that. ^ Q. Otherwise and at all times during the month you know you were right there, Johnny on the spot.’ A. Yes, sir; Johnny on the spot. Q. And Albert Hellsley and Charley Kemming could not have been out there on the*127 24th of January, because if they had been you would have seen them, wouldn’t yóu? A. I had ought to have seen them; I was not blind and I would have seen them if they were there.
This is the only testimony upon which appellant relies, as showing, or tending to show, that testatrix did not, in fact, execute the paper which was admitted to probate as her last will and testament; but counsel strenuously contend that it was sufficient to take the question of the due execution thereof to a jury.
However, it must be remembered that the paper was admitted to probate as the last will and testament of Henrietta Bath, upon proper service of notice by publication and this order was entered more than four years before the commencement of this action.
Here we have a presumption, arising from the attestation clause, and, at least, a prima facie case, arising out of the probate of the will, and, as against it, nothing more than an inference of lack of execution, due to the fact that Avitness claims to have been with or so near testatrix during the month in which the will purports to have been executed, that he might have seen any witnesses who claim to have attested the making of the will, and that he saw none, during this month, although he admits that he was away from home, during two afternoons in that month, taking his uncle to toAvn. Although admitting this opportunity for the making of the will, yet he affirms with all seriousness that the testatrix never made a will during that month. Surely the effect of the probate of the will should not be destroyed by such testimony.
A mere scintilla of evidence no longer calls for the submission of a case to a jury, Meyer v. Houck, 85 Iowa, 319; Cherry v. Des Moines Leader, 114 Iowa, 298. That there is anything more than a mere scintilla in the testimony we have quoted is not apparent.
Before passing upon the correctness of these rulings, it is well to note the other testimony in the case. It appears
The most that can be said is that there is testimony tending to show forgetfulness, both of fact and of obligation; but these do not, of themselves, show insanity or incapacity to make a will. One is justified in changing his mind, regarding •the disposition of his property, by will, without being subject to the charge of insanity or mental incapacity. It should not be forgotten that Frank Rath is an illegitimate son of plaintiff, and this fact may have had controlling effect when testatrix came to make her will, Again, Rosa, the favored
Finding no prejudicial error in the, case, the judgment must be, and it is, Affirmed.