171 Iowa 287 | Iowa | 1915
— On the 7th day of March, 1912, Frederick Zinkula executed the following will:
“First. I direct that all my lawful debts and claims including funeral expense, expenses of last sickness and the expenses of administration be first paid out of my estate.
“Second. I give, devise and bequeath to my son, Joseph Zinkula, the following described real estate situated in Johnson county, Iowa, to wit: The N. % of the S. W. % and the B. % of the S. W. % of See. 29, Twp. 78 N., R. 5 W. of the 5th P. M., containing 100 acres, on condition that my said son, Joseph Zinkula, pay to my wife, Katherine Zinkula, the sum of $120.00, annually, each and every year, during her life.
“Third. I give, devise and bequeath to my beloved wife, Katherine Zinkula, during her life the following described real estate in Johnson county, Iowa, to wit: The N. E. % °f the N. E. % of Sec. 31 and the N. W. 14 of the N. W. % of See. 32; also the W. % of the S. W. % of the S. W. 14, of Sec. 29, all in Twp. 78 N., of R. 5 W. of the 5th P. M., "containing 100 acres, to be by her used during her life, and after her death the same land described in item third of this will to be and become the property of my son, George Zinkula, absolutely.
“Fourth. I direct and it is my will that the following described forty acres, to wit: The S. E. ]4 of the S. "W. *4= of Sec. 29, Twp. 78 N., R. 5 W. of the 5th P. M., be sold by my executor hereinafter named for the best price obtainable, and the proceeds thereof be equally divided among my six daughters, to wit: Magdalina Simpson, Katherine Schintler, Anna West, Barbara Anderlik, Mary Hotz, Rose Zinkula, share and share alike.
“Fifth. I give, devise and bequeath to my son, Frank Zinkula, the following described real estate situated in Johnson county, Iowa, to wit: The N. % of the S. W. 14= of Section 9, Twp. 78 N., R. 5, W. of the 5th P. M, on condition*290 that my said son, Frank Zinkula, pay to my wife Katherine Zinkula, the sum of $120.00 annually, each and every year during her life.
“Sixth. To my son, Frederick Zinkula, who left me when I needed him most on the farm, I hereby give and bequeath the sum of $5.00, and no more, out of my estate.
“Seventh. I give, devise and bequeath to my daughter, Rose Zinkula, the following described real property situated in Iowa City, Iowa, to wit: The E. % of Lot Six and the W. y2 of Lot Seven in Block 16, Iowa City, Iowa, except 25 feet oiS of the east side of said W. y2 of Lot Seven in said Block 16, subject, however to a life estate therein of my wife, Katherine Zinkula, who is to use and occupy the same during her life.
“Eighth. I give, devise and bequeath to my beloved wife, Katherine Zinkula, all the rest and remainder of my estate, she to have all the moneys and evidences of money, in lieu of dower in addition to the provisions otherwise, herein made for her, she to have the remainder herein mentioned and the use thereof for and during her life, same to be used and disposed of according to her pleasure, and if any of said personal property remain undisposed of by my said wife at the time of her death, I give, devise and bequeath all such residue and remainder to my six daughters mentioned in item four herein, same to be divided among them in equal shares, share and share alike.
“Ninth. I hereby nominate and appoint John Tellin, of Iowa City, Iowa, executor of this my last will and testament, and direct that he be not required to give any bond as such executor.”
The testator died on the ninth day of May, 1913, and this will was duly admitted to probate thereafter. At the time of his death, he was 73 years old. His wife was 64 years old. He left surviving him his wife, five sons and six daughters, and two grandsons, the offspring of a deceased daughter.
The defendants appeared land denied thie allegations upon which plaintiffs base their right to have the will set aside. The cause was tried to a jury. At the conclusion of contestants’ testimony, the court, on the motion of proponents, directed a verdict against the contestants. Hereafter, for convenience, we shall refer to the contestants as plaintiffs and proponents as defendants.
Plaintiffs appeal and urge two grounds for reversal:
First. That the court erred in its ruling upon the admission of testimony in certain particulars, to which attention will be hereinafter called.
Second. The court erred in sustaining a motion to direct a verdict for the defendants under the record as made.
I. We will take up the grounds for reversal in the order assigned: Did the court err in the rejection of testimony as charged by the plaintiffs? To intelligently consider these complaints, it will be necessary to review somewhat the condition of the record at the time this evidence was rejected by the court. It may be well, however, to have the matter complained of in mind while the record is being reviewed.
*292 “Well, I thought to write you a few lines, to let you know how we are getting along. We are all well with that bad weather. Every day we have different weather. One day it is nice, nest day it rains, and the third day it is frosty, so it is queer weather this year.
“I was at our children on the farm last week. I was there three days, I visited them all there, and they are all well. I must also let you know that our Annie is going to the farm, they are going to move nest Monday. They sold their house and rented a farm about 3 miles west of town; so they are going to farm. I don’t know how they will get along, everything that they must buy is so dear, and they have to buy everything, so I wonder how they will get along.
“David Simpson was here last week. I was coming from town and met him on the street. I came near not recognizing him, he stopped and offered me his hand, and I could not recognize him, he looks sort of sicHy. So I told him to go with me to dinner, but he did not want to go with me; he was afraid of that wicked mamma of oúrs. He went with the other man to Sehintler’s and I went there too, then I don’t know when they went home, I didn’t see them any more.
“So when you write, let me know when Rosie wrote you, and if you are all well, write also if you have that cistern finished, if not, then have it made, and I will pay for it what it will cost.”
The third error in the admission of testimony is predicated upon the action of the court in sustaining an objection to the following question propounded to Mary Hotz, daughter of the testator, while testifying for the plaintiffs: “Q. Were there any times when you heard your mother say what your father should do with his property in reference to the girls; whether they should get it or should not get it?” This is asked for the purpose of showing the feeling that existed between the mother and the girls.
The fourth error assigned on this point is that the court erred in striking out the testimony given by Michael Zinkula, a son of the testator, in which he said: “I heard mother speak about her feeling towards the girls. She told me one time she did not want father to give any more property to the girls. I asked her why. She said she wouldn’t let him.”
It appears that’this testimony as to what was said by the mother related to a time after the execution of the will, and was stricken out for that reason. These are all the errors assigned upon the first ground for reversal.
As to the first error eomplained'of, involving the action of the court in rejecting a letter written by the testator to his daughter, Magdalina, the 18th day of March, 1909, we have to say that, in view of the theory upon which this case was tried, we think this letter might well have been admitted by the court. Plaintiffs seek to maintain two positions: (1) That the father was very friendly towards the daughters; wished them well, and had a kindly interest in their welfare; (2) that the mother was hostile to the daughters and had no kindly interest in their financial condition, — that she did not wish the girls to have any of the father’s property. But, we cannot reverse the case upon this ground; for, although this letter has some bearing upon the issue made, it touches so slightly upon the point contended for that its exclusion cannot be deemed prejudicial in view of the fact that the court allowed
As to the second error assigned, we think, too, that the court erred at the time in not permitting an answer.
“Plaintiffs offer to prove by this witness that her mother told her before this will was made that she was afraid that Mr. Zinkula would give the home residence to Rosy and said if he ever did, she would pull every hair out of her head and that she wanted him to sell the place and go and buy a small place because she did not want her to get that place, and this evidence is offered for the purpose of showing the feeling that the mother, whom we charge with exercising undue influence, had toward this daughter Rosy. Plaintiffs also want to show by this witness that at different times her mother said, told her, said in her presence, that the girls should not get anything, that the boys should get the property, for the same purpose to show the feeling she had towards the plaintiffs. ’ ’
By Counsel: “I also want to recall Mrs. Schintler on the same suibjeet and offer to prove by her that her mother said father wanted to give Rosy the house and wanted to know what Mrs. Schintler thought about it, and Mrs. Schintler said let him do as he wanted to and her mother said she would see to it she wouldn’t get it, that the boys would get the farms and the girls need not look for anything, they wouldn’t get anything.”
Thereupon Mrs. West gave the following testimony:
*295 “Mother used to tell me that if father would will the house to Rosy she said she would pull her hair out of her head. She wanted the house for George and she always told me she says us girls wasn’t going to get anything, it was all for the boys. I asked her why. She said, you didn’t work. She says, you don’t deserve it. She used to tell me she wanted father to sell the house. I asked her why. She says, I am afraid he is going to give it to Rosy. She wants him to take a smaller place for some reason. I don’t know why. She always said she wanted him to sell the place, she wanted to buy a small house. She wouldn’t do it because he always had it ready for Rose.”
At the conclusion of Mrs. West’s testimony, the plaintiffs recalled Mrs. Schintler, and she was permitted to testify and did testify substantially as suggested by counsel at the time he expressed his desire to recall her, as hereinbefore set out, covering the same subject-matter called for by the question to which objection was sustained, and of which complaint was made. The ruling excluding this testimony originally was without prejudice to the plaintiff.
“I heard mother talk to father only one time in regard to what should be done with the property. We come to the city, I and my husband, and mamma was complaining about the girls not coming home to visit her and papa says, mamma gave everything to the boys and they don’t come to see her either, and mamma says that the girls didn’t work, they didn’t deserve it, that is why they didn’t get it or wouldn’t. She thought the boys would get it. The reason she gave father for*296 that was that the girls didn’t use to work as hard as the boys.”
This testimony went in without objection. Thereupon, counsel propounded the question to which objection was urged and sustained, and of which complaint is made. There is nothing in the record to indicate that, if she had been per-’ mitted to answer this question, the answer would have been other or different than was detailed by her in her previous testimony, hereinbefore set out. There is nothing to show that she ever had any other conversation with her mother, except the one which she detailed. We cannot speculate on the record for the purpose of finding error. The question assumes that there were other times when she heard her mother say something about the property, but there is no evidence that she did, in fact, hear her mother speak concerning the property, except as hereinbefore detailed. There is no prejudicial error apparent on this point, and none can be presumed from this state of the record.
We come now to the fourth error assigned, the striking out of the testimony of Michael Zinkula, which is as follows:
“She (meaning the mother) told me one time, she says to me, she didn’t want father to give any more property to the girls. I asked her why, she said because she wouldn’t let him do that.”
Counsel for the plaintiff, referring to the ruling on the question submitted to Michael Zinkula above, thereupon proposed to the court to show by the witness that his mother told him many times that she didn’t want her husband to will the girls a cent, and that he went and left them forty acres of land anyway, but he didn’t dare to give them a cent if he was living, counsel stating, at the time, that the evidence was offered for the purpose of showing the extent of the feeling that the mother had against the girls.. The court thereupon
In considering the relevancy of this testimony, its probative, force and importance in the disposition of the controversy, we must bear in mind that it was the claim and contention of the plaintiffs, all the way through, that the mother was hostile to these girls; that she didn’t want her husband to leave them any of his property; that she was a dominating, domineering woman; that the husband was afraid of her, and afraid to oppose her wishes in this respect. It is contended that this dislike for the daughters and this purpose to prevent the father from bequeathing them anything continued up to the time of her husband’s death; that this indicated a motive on her part to exercise the undue influence charged. It is claimed that the will is the result of the undue influence exercised by this mother over the testator during his lifetime, and it is claimed that it is always competent to show the condition of the mind and the malice, if any, of the party charged with the exercise of undue influence. Of course, this does not necessarily show the exercise of undue influence, but it is a fact to be considered with other evidence in determining whether undue influence was used or not. The fact, however, that the person charged with exercising undue influence had a hostile mind towards those excluded from the testator’s bounty, and desired that they should be excluded, even though such state of mind and desire were communicated to the testator, does not, in and of itself, show the exercise of undue influence in the doing of the thing charged to have been the result of such exercise.
In discussing this question, counsel for the plaintiffs rely somewhat upon what is said by this court in the eighth paragraph of the opinion in Betts v. Betts, 113 Iowa 111, 118. "We do not think, however, that the discussion there is sufficiently broad and comprehensive to throw much light upon the question now under consideration. We are inclined to think that this evidence was competent and material. Whether its exclu
This brings us to a consideration of the real controversy in this ease, the second ground upon which reversal is sought.
II. The contention of the plaintiffs is that the court erred in directing a verdict for two reasons: (1) That it was clearly shown that the testator was of unsound mind; that he was possessed of an insane delusion with reference to the disposition of his property, and the attitude of his wife with reference to such disposition. (2) That it was clearly proven that the testator was under the complete domination of his wife, who was determined in her attitude of ill feeling towards her daughters, and determined in her position that they never should receive any of the property.
It goes without saying that it is not necessary that the record establish clearly and without question the propositions upon which plaintiffs seek to have the probate of this will set aside. It is sufficient if the evidence is such that minds honestly searching for the truth as to the question in controversy might differ in their conclusion as to what the ultimate fact is. The general rule so often pronounced by this court is, where there is evidence in the record tending to support a proposition, and reasonable minds might differ as to whether the evidence does or does not support the proposition, then it is a question for the jury; that is,' the question must be left to the jury for its determination, whenever the evidence is of such a character that reasonable minds might differ as to the conclusion to be reached, from the evidence, as to what ultimate fact is established. The trier of the fact is entitled to draw all legitimate inferences from the facts proven. Many ultimate facts are established by inference alone. Many facts of which we take cognizance are deductions or inferences from
To entitle plaintiffs to recover in this suit, they must establish by a preponderance of the evidence that the instrument in question does not express the mind of the testator. To this end, one of two facts must affirmatively appear: either that the testator, at the time of the making of the will, was mentally incompetent to make a will, or that his. mind was so unduly influenced by his wife in the making of it that it did not express his will and purpose, but rather the will and purpose of his wife. There is absolutely no evidence in this record even hinting at a possibility that any undue influence was exercised by anyone other than the wife, the mother of these girls.
*301 “Mamma continues to be peevish and morose most of the time. She doesn’t speak and continues to be angry. I don’t know what is the matter with her. When she speaks to me, it is always in anger. That seems to be her way. I believe she thinks I am sending to you some money, or to Magdaline. She doesn’t want to give anything to the girls, but when George spent several hundred dollars last spring, she said nothing.”
It is true that he wrote several letters to his daughters of the same import. However, every substantial fact stated by him in his letters to his daughters touching the attitude of the wife towards him, her disposition and character, her attitude towards her daughters, and her disposition towards giving property to them, was denied by the wife. There is no substantive evidence that any fact detailed in these letters, concerning the wife and her disposition towards the daughters, was true: The wife testified, “I never said to him that I didn’t want him to give anything to the girls.” The wife positively testified, and there is no substantive evidence to dispute her, that she was always on good terms with her daughters; had nothing against them. In fact, she denies every matter written by the husband to these daughters, touching her attitude towards her husband and towards her daughters.
While it is true that these letters written by the testator to his daughters were competent evidence as throwing light upon the condition of his mind, yet it is not substantive evidence, and cannot be considered as tending to show that undue influence was in fact exerted upon him in the making of the will. See In re Townsend Estate, 128 Iowa 621, in which the following excerpt from Schouler on Wills is quoted with approval:
“A testator’s declarations, whether made before or after the execution of the will, . . . are admissible chiefly to show his mental' condition or the real state of his affections; and they are received rather as his own external manifesta*302 tions than as evidence of the truth or untruth of the facts relative to the exertion of undue influence upon him. They may corroborate, but the issue calls for its own proof from the living. . . . There, on the whole, should be independent testimony indicating undue influence before the decedent’s declarations are considered, and then they are chiefly pertinent to show the condition of the mind susceptible to the sinister influence and a testamentary act correspondingly.”
It is, however, stated in that case that mere declarations are of very little force, and amount to very little in themselves, in the face of a prima-facie showing that the testator was a thoroughly competent person, enjoying normal health, and under no apparent coercion or stress when he executed the instrument. See, also, Johnson v. Johnson, 134 Iowa 33, in which it is said:
“Undoubtedly the statement of the deceased (and these letters are nothing but statements of the deceased) may be received as indicating his state of affections or dislike for particular persons benefited or not benefited by the will, of his inclination to obey or resist persons alleged to have exerted the influence, and, in general, his mental or emotional condition, with reference to his being affected or influenced by any of the persons concerned. But as an account or recital of what, in fact, has occurred in the past, such evidence is no more than hearsay, and ought not to be received as tending to establish the facts related.”
The most that can be contended for in this record, so far as undue influence is concerned, is that the mother of these girls who are complaining desired that they should not have any portion of the father’s estate; that she had an opportunity of influencing the father to that end. There is no evidence that she ever said or did anything tending to effectuate that purpose, except, perhaps, the testimony of Mary Hotz, hereinbefore set out, in which she said she heard mother talk to father only one time in regard to what should be done with the property:
*304 “I and my husband came to the city and mamma was complaining about the girls not coming home to visit her, and papa says, mamma gave everything to the boys, and they don’t come to see her either, and mamma says that the girls didn’t work, they didn’t deserve it, that is why they didn’t get it or wouldn’t get it. She thought the boys would get it. The reason she gave father for that was that the girls didn’t use to work as hard as the boys. ’ ’
It does not appear, however, when this conversation was had, or what led up to the conversation. It does not appear that the husband made any response, or even that he heard what was said by the wife. It appears that a discussion was had between the witness Mary Hotz, her father and mother. The mother was complaining about the girls not coming home, and the father remarked, “The boys don’t come either, and yet you want them to have everything,” and the mother responded that the girls didn’t work and didn’t deserve anything, and gave that as a reason why they shouldn’t receive anything. It was a mere expression of the opinion of the wife that the girls were not entitled to receive as much as the boys because they didn’t work as hard, presumedly, for the father, as the boys did. This is the only time the record discloses that the father and mother talked on this matter, and the father entertained his opinion apparently without fear of offending his wife.
Under this record, there is no substantive evidence of any want of testamentary capacity on the part of the father— no evidence that he was physically or mentally weak. So far as this record discloses, he was a man of considerable business ability, entertained a proper regard for his relationship to his family; his love for the girls was uninfluenced by anything that the mother said or did. He visited them, invited them to his home, treating them with all the consideration and fondness of a parent for a child. There is no substantive evidence of any ill feeling or disturbance in the home life. This wife
These contesting daughters were on the stand, and nowhere do they impeach the mother’s character, or attempt to show any dominating influence by her over the.life of her husband. Nor do any of them attempt to show that the husband was in the least under the control or domination of his wife. No act is shown in which he surrendered his will to hers, or where she ever coerced him into doing anything against his will or his judgment. There is no evidence that she was peevish or morose, — no evidence that the daily intercourse between herself and her husband was not such as usuuallyand ordinarily exists between husband and wife. Of course,, we speak now of evidence independent of what was written by him in the letters. This we do not accept as sub stantive evidence of these facts in this controversy.
Not all insane delusions render one incapable of making a will. A man may possess all the mental qualities essential to the transaction of even intricate business, and yet have delu
The case at bar presents a very different question. Nothing was ever said or done, so far as this record discloses, to poison the mind of the testator against these daughters. Indeed, he seems to have had a great affection for them up to the time of his death. In no way did his belief in his wife’s attitude affect his intercourse with them. He entertained no delusion a§ to his daughters — as to their character, as to their attitude towards him, or as to their right to be the recipients of his bounty. The most that can be claimed is that he had a delusion as to the attitude of his wife towards them, an attitude with which he appears to have had no sympathy. His social intercourse with them during all his life was pleasant. He invited them to his home. He visited at their homes. He seemed interested in their welfare, and in the will he made
It would require a very strange and unnatural process of reasoning to reach the conclusion that the father was influenced by his belief in the attitude of the mother towards these daughters in the making of the will in question, and clearly so in the absence of any showing that she asserted'or attempted to assert any control over him in the disposition of the property. We think the record wholly fails to establish either of the propositions upon which the plaintiffs rely.
As to the exclusion of the testimony of Michael Zinkula, heretofore referred to, we have to say that this testimony went only to the mental attitude of the wife. It never appears to have been communicated to the husband; and, as there was no substantive evidence tending to establish the fact of undue influence, the error in striking out this testimony was without prejudice, for the reason that, even with it in, the court must have directed a verdict for the defendants.
The case is therefore — -Affirmed.