Arnold v. Livingstone
| Decision Date | 16 January 1912 |
| Citation | 134 N.W. 101,155 Iowa 601 |
| Parties | ARNOLD v. LIVINGSTONE ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jones County; E. O. Ellison, Judge.
This is an action to set aside the will of Sarah J. Livingstone and the former probate thereof. At the close of plaintiff's evidence, the trial court directed the jury to return a verdict for the defendants, which was accordingly done. From a judgment dismissing the petition, the plaintiff has appealed. Affirmed.Herrick, Cash & Rhinehart, for appellant.
E. E. Reed, J. W. Doxsee, and E. C. Perkins, for appellees.
Sarah J. Livingstone died on March 12, 1909. Her purported will was admitted to probate by the district court of Jones county on April 17, 1909. Subsequently this action was instituted; the plaintiff being one of the daughters of deceased.
The grounds of invalidity charged in the petition against the purported will were: (1) That the testatrix lacked mental capacity to make same; and (2) that the execution of the will was procured by the fraud and undue influence of the beneficiaries therein and others. At the close of the plaintiff's evidence, the trial court held that there was not sufficient testimony to warrant the submission of either alleged ground to the jury.
[1] 1. On the question of mental capacity, the testimony was clearly insufficient. The will was executed November 28, 1909. The testatrix was nearly 80 years of age. The testatrix had never learned to write beyond making her own signature. Of late years she had not been able to do that much. She was intelligent, however, and attended to her own business affairs, which were few. Her mental capacity appears to have been normal, and her physical activity was rather marked for her years. Her death later resulted from pneumonia. The record discloses no testimony tending to show mental incapacity. No one testified to any irrational act on her part, nor did any witness venture an opinion that she was not of normal mental capacity. It was shown that on two occasions shortly after moving to Monticello from a farm, two or three years before her death, she asked assistance to locate the street on which her house was situated, and that she was in some confusion as to its location. Some reliance is placed upon this fact, but we are able to see very little, if anything, in it. We think it must be said, also, that the evidence was clearly insufficient to warrant a submission to the jury on the ground of undue influence.
[2] The will gave all the property to the two youngest children, a son and a daughter, known in this record as Rodney and Phemy. There were seven or eight other sons and daughters who received nothing. Perhaps it should be said that the will was presumptively inequitable, and that its inequality was a proper circumstance to be considered. The two beneficiaries were unmarried, and had always lived at home with the father and mother, and this for many years after they arrived at majority. The other children had all married and had homes of their own. The father had died in August, 1907. It appears from the record that the mother was not satisfied with the will left by him, but the provisions of his will are not made to appear, nor her grounds of objection thereto. It appears that the property left by him consisted of the 160-acre farm, the former home of the family, in Delaware county, and the little home in Monticello worth $1,400. At the time the will involved in this controversy was made, the property of the testatrix consisted of her interest in her husband's estate and in the estate of her deceased son, who had died in another state since the death of her husband. This latter estate amounted to about $10,000, and was inherited by the testatrix as her son's sole heir. The testatrix loved all her children with an equal affection, and they visited her often. The financial circumstances of the other children are not made to appear. There is no evidence of the immediate circumstances attending the making of the will, except that it appears to have been made by a lawyer and left with him. There is some testimony tending to show that the beneficiaries of the will knew of its existence, and that the other children did not. There is also evidence that on one or two occasions the testatrix had complained of certain conduct of her son Rodney. There is also evidence that he lacked in industry and efficiency, and that he was not attentive to his mother. The great volume of the testimony, however, is devoted to alleged conversations had between the beneficiaries or one of them, and other members of the family. These conversations have been put in evidence on the theory that they contained implied admissions of improper conduct on the part of the beneficiaries. Practically all these alleged conversations were had after the date of the execution of the will, and most of them after the death of the testatrix. We do not think that a jury would be warranted in drawing from these conversations the many inferences which are suggested in appellant's argument. We cannot enter upon a detailed discussion of them without extending this opinion unduly. These conversations show a state of unfriendly feeling as between the beneficiaries and some of the brothers and sisters, and that it had its origin prior to the death of the mother. If there is anything to be found in these conversations as tending to prove undue influence, it is very slight indeed. We think, therefore, that the trial court was right at this point.
3. Considerable testimony offered by the plaintiff on the trial was ruled out upon objection of the defendants. Many of the assignments of error which are presented to us are predicated on such adverse rulings.
The following examination of the plaintiff as a witness is sufficiently illustrative of the record in this respect:
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