Barry v. Walker (In re Walker's Will)

• Decision Date: 15 November 1910
• Citation: 128 N.W. 386,152 Iowa 154
• Parties: IN RE WALKER'S WILL. BARRY ET AL. v. WALKER ET AL.
• Court: Iowa Supreme Court

152 Iowa 154

128 N.W. 386

IN RE WALKER'S WILL.BARRY ET AL.

v.WALKER ET AL.

Supreme Court of Iowa.

Nov. 15, 1910.

Appeal from District Court, Hardin County; R. M. Wright, Judge.

A jury found that Thomas Walker was mentally incompetent to make the will in question, and the proponents appeal from a judgment on such verdict. Affirmed.Ward & Williams, David Evans, H. C. Liggett, and E. P. Andrews, for appellants.

F. M. Williams and Lundy & Wood, for appellees.

SHERWIN, J.

A witness for the contestants was permitted to testify that the testator's conversations with him were “rambling,” and that his physical condition during the time that he had known him was “weak and decrepit.” Another witness testified that, when the testator talked with him about personal business matters, “it was a conglomeration of his continual business.” These answers stated facts, and not conclusions, and were competent. Schmidt v. Dubuque, 136 Iowa, 401, 113 N. W. 820;Vannest v. Murphy, 135 Iowa, 123, 112 N. W. 236;Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717, 68 Am. St. Rep. 293.

Several nonexpert witnesses were permitted to testify that in their judgment the testator was of unsound mind when he executed the will in question, and the appellants assert that such opinions had no basis of fact or acts. It is true that in some instances the facts related by the witnesses as a basis for the opinion given were rather unsatisfactory, but the sufficiency of the facts as a basis for the opinion was a question for the jury, and not for the court. Stutsman v. Sharpless, 125 Iowa, 335, 101 N. W. 105. We have carefully examined the testimony of each witness, and find that in each instance there was some foundation for the opinion given.

The will in question was made in March, 1907. A physician who had attended the deceased occasionally during the four or five years immediately prior to January, 1907, was allowed to testify as to his physical and mental condition at the time of such visits. Objection was made to the competency of the witness under the provisions of Code, § 4608. In Winters v. Winters, 102 Iowa, 53, 71 N. W. 184, 63 Am. St. Rep. 428, we held that a physician was a competent witness as to the physical and mental condition of his patient, whether called by an executor of the will or by an heir who was contesting the validity of the will. This rule was followed in Kirsher v. Kirsher, 120 Iowa, 337, 94 N. W. 846, and is controlling here.

The same witness was also permitted to answer the following questions over the proponents' objections: “What was your judgment as to his mental condition, as to whether or not, at the time you talked to him and that you have reference to in your testimony, he was capable of forming a rational opinion as to the value of any particular business or property that he had, especially we will say his farm at or near Owassa?” “You spoke of one time when he spoke of making a will, and his not remembering his grandchildren, and when he finally said he would go down and have Mr. Huff make his will, what was your judgment at that time, Doctor, of his mental condition, as to his capacity to know and remember the obligation, if any, that he was under to these children?” “And in reference to the management of the property, did you hear him talk anything about that? What was your judgment as to whether or not he was able to intelligently comprehend the property he was talking about?” It is said that these questions called for the opinion of the witness on the ultimate question to be determined by the jury and were therefore incompetent. The record does not clearly show when any of the conversation occurred upon which the witness based his answers to the several questions; but it is shown that they were held within five or six years before the 1st of January, 1907, and that none of them took place after said date. It may be said that it fairly appears that the conversations and observations forming the basis of the opinion given occurred a year or more before the will was made. The questions and answers were therefore competent under the holding in Glass v. Glass, 127 Iowa, 646, 103 N. W. 1013, and in Re Overpeck's Will, 120 N. W. 1044.

Another expert witness was asked this question: “Take a man who imagines he has all sorts of property and imagines large properties; * * * what do you say now as to whether at those times he was capable of forming a rational conclusion as to what property he really did have?” The same witness was also permitted to testify that the testator was not, in his opinion, capable of forming a rational conclusion as to his children and grandchildren. This witness made the observations upon which he based his answers to these questions at least a year and a half before the date of the will, and, as the questions called for the mental condition of the testator at that time, they were competent. The contention that some of the questions put to this expert witness had no basis in the evidence cannot be sustained.

Still another witness testified that in 1903 he was present when the testator's son computed the interest on notes belonging to his father and heard the talk between the two at that time, and that the testator did not then realize the amount and value of said notes. The additional objection to such testimony is that it related to a time too remote from the date of the will. The evidence tended to show senile dementia at the time the will was made, and that there had been a gradual loss of mental capacity extending over a period of several years. The testimony tended to show the character of the testator's mental incapacity, and was therefore competent.

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