Sim v. Russell

Decision Date24 January 1894
PartiesSIM v. RUSSELL ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Jones county; James D. Giffen, Judge.

Action to set aside the probate of a will, and to have the will declared to be void. There was a trial by jury, and a verdict and judgment for the defendants. The plaintiff appeals.J. W. Jamison and W. I. Chamberlain, for appellant.

Sheean & McCarn, for appellees.

ROBINSON, J.

In the year 1890, John Sim, a resident of Jones county, died, leaving an estate of the value of about $4,000. His wife had died some years before, and the plaintiff was his only child. In May of the year specified, what purported to be the last will of the decedent was admitted to probate. It was executed on the 5th day of March, 1888, and bequeathed to plaintiff the sum of $25; to William Orford, the sum of $200; to a church, $100; to John Russell, $100 and a walking stick; and to other persons, pictures and certain articles of small value. The will provided that the remainder of the property of the testator should be divided among two nieces and two nephews, who resided in Scotland; and appointed John Russell and William Paul executors. The grounds upon which the plaintiff attacks the probate of the will are that the notice thereof was insufficient, that decedent was not competent to make a will at the time the one in question was made, and that it was obtained through undue influence. The plaintiff was married in the year 1871, and from that time until after the death of his father has lived upon and carried on the farm which was his father's home. His mother died in the year 1873, and his father lived with him from that time until the year 1886, when he went to Onslow, and there boarded with Mrs. Walters until he died. The influence which plaintiff alleges was the wrongful cause of the making of the will, so far as the evidence shows, was exercised, if at all, during the two or three months which preceded the making of the will.

1. The plaintiff was introduced as a witness, and was asked in regard to the condition of his father's health for some years before he died, and especially at the time of the making of the will, and before and about that time; but objections to his answering the question were sustained. It was the theory of the plaintiff that his father's mental faculties had been impaired by long and continued illness to such an extent that he was incompetent to make the will, and that, if he was not incompetent, his mental condition was such that he was easily influenced by others to do what he would not have done if free from such influence. We think the answers of the witness should have been received. The questions did not relate to any personal transaction or communication between him and the decedent, and the answers would have been competent evidence of a material fact. Severin v. Zack, 55 Iowa, 28, 7 N. W. 404;State v. Shelton, 64 Iowa, 338, 20 N. W. 459;Parsons v. Parsons, 66 Iowa, 755, 21 N. W. 570, and 24 N. W. 564.

2. Appellant complains that the appellees were permitted to show the amount of property he owned when the will was made. Inasmuch as the plaintiff attacked the will in part because it was unnatural and unreasonable for decedent to make to his son only a nominal bequest, and to give all the remainder of his estate to more distant relatives, and to persons to whom he was not related, we think it was entirely proper to show the financial condition of the son, as bearing upon the question of the reasonableness of the will. If the son...

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