Parsons v. Parsons

• Decision Date: 24 September 1885
• Citation: 21 N.W. 570,66 Iowa 754
• Parties: PARSONS ET AL v. PARSONS ET AL
• Court: Iowa Supreme Court

21 N.W. 570

66 Iowa 754

PARSONS ET AL v. PARSONS ET AL

Supreme Court of Iowa, Council Bluffs

September 24, 1885

Appeal from Jefferson Circuit Court.

WHAT purported to be the last will of John R. Parsons was filed in the circuit court, and plaintiffs, as proponents, asked that the same be established and admitted to probate. The defendants, as contestants, objected to the admission of the proposed will to probate. They admitted that it had been duly executed, but pleaded that the testator "was not of sound and disposing mind and memory at the time of the execution of said will, and that undue control and influence over him were used by John J. Parsons and his wife Mary, and Baldwin Parsons and his wife Mary, in procuring the execution of said will." Trial by jury; verdict and judgment for the defendants. The plaintiffs appeal.

AFFIRMED.

D. P Stubbs, for appellants.

J. D Jones and Leggett & McKemey, for appellee.

SEEVERS J., ADAMS, J.

OPINION

SEEVERS, J.

I.

One of the subscribing witnesses to the will was introduced as a witness by the defendants, and was asked to state the condition of the testator's "mind at the time the will was executed; whether sound or not." This question was objected to on the ground that the witness could not give an opinion as to the sanity of the testator. The objection was overruled. The objection made in the district court is renewed here, and it is insisted that the witness was not introduced as an expert, and, therefore, could only testify to facts. In support of this proposition Pelamourges v. Clark, 9 Iowa 1, and Rice v. Rice, 50 Mich. 448, 15 N.W. 545, are cited. Neither of these cases is applicable. It is elementary that a subscribing witness to a will can state whether the testator was sane at the time the will was executed. 1 Greenl. Ev., § 440.

II. Robert E. Parsons was one of the defendants, and when on the stand as a witness was asked to state the conduct of James and Baldwin Parsons to their father, and in what manner they treated him. This question was objected to, and the objection overruled. It is insisted that the question sought to elicit from the witness evidence in relation to a personal transaction between the witness and the deceased. This we do not understand to be so. The object, evidently, was to show the acts and conduct of the legatees in the will toward the testator. This does not constitute a personal transaction between the witness and the testator, and why it should be claimed so by counsel we cannot imagine. Objections were made to the introduction of certain evidence, which were overruled. These objections are renewed, but no reasons are adduced in their support. They will not be considered. If counsel are unable, or do not see proper, to give any reasons whatever in support of a stated proposition, we cannot undertake to perform such duty for them. Such is not our duty as we understand it. Kinser v. Farmer's Bank, 58 Iowa 728, 13 N.W. 59; Smith v. Hickenbottom, 57 Iowa 733.

III. A witness was asked to describe the conduct of the testator, and the witness answered: "He acted strange. He acted in a way I never saw him before." And the witness also testified: "Well, his mind was weak from this on, and he was childish all summer." The plaintiffs moved to strike out this evidence because incompetent, and because relating to personal transactions between the witness and the testator. This motion was overruled. The last objection is not insisted upon. But it is said that a "non-expert witness cannot give an opinion, unless the facts on which it is based are first given to the jury, and the opinion is based on such facts." We think evidence that a person acted strangely or in a childish manner are facts, and may be testified to by any one. Smith v. Hickenbottom, 57 Iowa 733, 11 N.W. 664. Whether a non-expert can testify that the mind of another is weak we have no occasion to determine, because the motion was to strike out all of the evidence above set out, and was therefore correctly overruled, because at least a portion of it was admissible.

IV. A witness was permitted to testify that the deceased said to her: "If it was to do over again I would make an equal division of my property." To this evidence the plaintiffs objected because--First, the declaration was made by the testator three weeks after the will was executed, and, second, that the evidence was irrelevant and incompetent. The objections were overruled. We think the evidence was admissible, and it has been in substance so held. In re Will of Hollingsworth, 58 Iowa 526, 12 N.W. 590; Waterman v. Whitney, 11 N.Y. 157; and Shailer v. Bumstead, 99 Mass. 112. In the last case, the grounds upon which the admissibility in evidence of the declarations of the testator, made subsequent to the execution of the will, are stated at length. It is not necessary to restate them here.

V. What has been said sufficiently indicates that we think no error was committed in admitting certain evidence of Hannah Parsons and Lewis Rizor that was objected to. The defendants propounded certain questions to the legatees named in the will, or some of them, on cross-examination, which were evidently designed to lay the foundation for impeaching them as witnesses, by showing that they had made contradictory statements to others out of court. The legatees, when on the stand as witnesses, denied that they had made the statements imputed to them, and therefore the plaintiffs were in no manner prejudiced by the questions asked. Afterwards defendants introduced evidence showing that said witnesses had made statements which were not in accord with their evidence. This evidence was objected to, because it was not proper in rebuttal, irrelevant and incompetent. If the real objection was that no proper foundation had been laid, we think it should have been stated. The objection now urged is that the impeaching evidence was improper, on the ground that the cross-examination was improper, because it was not in relation to matters the witnesses had testified to in chief. We have examined the evidence with care, and conclude that in this respect counsel is mistaken. We think the impeaching evidence is clearly competent.

VI. The plaintiffs asked a witness this question: "Now Mrs. Parsons, from what you heard father Parsons say to other members of the family, and from what you observed there that morning, what do you think as to the condition of his mind that morning?" The defendants objected to this question, and the objection was sustained. There was no pretense that this witness was an expert, competent to give an opinion as to the mental condition of the testator. The rule as to nonexperts we understand to be that, after the witness has stated facts and circumstances, then his opinion, derived from and based upon such facts, may be given. Pelamourges v. Clark, 9 Iowa 1; State v. Huxford, 47 Iowa 16. It will be observed that the question asked was not confined to facts to which the witness had testified, and, her opinion, based thereon, asked, but she was asked to state what her opinion was, based on her own observations and what she had heard the testator say. The witness was permitted to exercise her discretion as to what facts and circumstances she should take into consideration. In excluding the evidence the court did not err. Ashcraft v. De Armond, 44 Iowa 229; State v. Stickley, 41 Iowa 232; Rice v. Rice, 50 Mich. 448, 15 N.W. 545.

VII. The plaintiffs sought to prove the declarations of one of the contestants in relation to the will. This evidence was objected to and the objection sustained. It has been held that a contestant cannot be permitted to introduce in evidence the declarations of one of the legatees. In re Will of Mary Ames, 51 Iowa 596, 2 N.W. 408; Dye v. Young, 55 Iowa 433. For the same reasons we do not think the declarations of one of the contestants can be introduced in evidence by or in behalf of the legatees.

VIII. It is said the court erred in refusing to submit certain interrogatories to the jury. The abstract fails to state that the questions were submitted to counsel for the defendants as required by section 2808 of the Code.

IX. The...