Appeal from district court, Louisa county; D. Ryan, Judge.
GRANGER, J.
John S. Towndrow, deceased, in his lifetime made his will, which was, after his death, admitted to probate. The plaintiff, Elizabeth S. Bennett, who brings this suit, by her next friend, alleges that she is the illegitimate child of John S. Towndrow, and that she was so recognized by him in his lifetime generally, notoriously, and in writing. By the will of Towndrow the plaintiff was a devisee of certain real estate in Muscatine county, in this state. The remainder of his estate, real and personal, was devised and bequeathed to the defendant Newton West Hibbard. This action is--First, to set aside the will entire, because the testator had not testamentary capacity; and, second, to vacate it in so far as it devised real estate to Hibbard, because he was and is an alien, and disqualified to accept such provisions of the will in his favor. The important questions in the case are the recognition of the plaintiff so as to entitle her to inherit, the testamentary capacity of Towndrow, and the legal effect of the alienage of Hibbard. With our view of the case, it is only necessary to consider the last two questions.
1. It is conceded that Towndrow was a remarkably eccentric man during his entire manhood. He died at the age of about 70 years. If we are to discuss the effect of the evidence to any extent, it seems quite necessary to set out some parts of it, as in no other way can its character be understood. The following is the direct testimony of some of the witnesses for the contestants of the will: Charles Estle: “Am thirty-three. Lived three-quarters of a mile from Towndrow, and know him ever since I can recollect. Was not often in his company. Didn't see much of him the later part of his life. Was there the Monday before he died. Was at the funeral of his wife. Had a conversation with him about where he was to be buried in Muscatine county. I have heard him say that he was going to be buried under a big oak that he had up there; and then again I heard him say that he had four trees,--four oaks,--all together, and he said that he was going to be planted in there. He was not buried there. Have been at his house and seen him eat. Once, just as I got there, he had dinner almost ready. He set the chairs around his table, and turned to his stove to get up some of his victuals, and while he was doing that the cats goes on his table and goes to eating the victuals, and he turned around and takes them down, and got everything on the table, and sets up, and the cats gets up on each knee, and one beside him, and when he was eating he takes a piece for himself, and gives a piece to the cats and dogs. That's the way they would eat. At the time the old lady was lying sick up stairs. She had a little bell up there that she would ring when she wanted anything, and the old lady rang the bell for something, and Jack paid no attention to it, and he spoke about her ringing the bell, and he paid no attention to it, but let it go, and didn't go up until he got through eating. Have heard him say that it would be better if he would take and knock his wife in the head.”
Also Ernest Lee: “Am twenty, and have known Mr. Towndrow ever since I can remember. Lived three-quarters of a mile from him the later part of his life. Saw him often, and conversed with him, and observed his talk. Our farms joined. Was at his house one night after the death of his wife, and before the burial. William Wilson was there. Remained all night. Towndrow was there. He remained up with us until eight or nine o'clock, and then he laid down and slept on the rough box all night. He didn't go to bed at all after his wife's death and before her funeral. He laid down in his clothing that night. I observed his conduct as very queer and curious; different from any other man I ever knew. One time I was sitting in the door, and he was planting corn. He had a red handkerchief on his head. He jumped off, and ran about twenty rods, and hollered very loud. Another time one of his horses got out and broke into our yard. I got on the pony and run him back, and he threatened to kill me for it. He would take dry dirt from our field and carry it home. His dog came across the field when my sister was sick and had died, and father killed the dog. He came over and into the house as a gentleman, and was all right until he seen the dog, and then he was wild. He said the dog tried to talk with him. He took it home and buried it by his front door. Then, at the funeral, he raised up and screwed the coffin lid, and when they called on the choir to sing, he raised up too. At the grave he threw a clod across the grave to draw my attention, and I went to him, and he said there was no use in wasting ground. It was dug too far from the child's grave. He said he would put a bottle in the coffin, and a letter stating the price of corn, and that they were farmers, and her name and age. I have heard him pray and swear as near at the same time as any one could. That was on his death bed. He says: ‘See the Mrs. and angels around the Lord's throne. That is all right, my lad;’ and then he began the Lord's prayer, and said that through, and almost in the same breath he swore an oath. I think this was on the Friday night before his death. I sat up with him some time during his last illness. He was often wandering and flighty, and rambling in his conversation. I didn't understand all the sentences and words which he spoke. This continued all the while during his last sickness. I was there Saturday. Observed that he was no better. Was there on Sunday before the will was made, and observed that he was weaker, and no better. The only change from Friday evening in his physical appearance was that he was weaker. I heard him say that he had not drank a drink of water for three months. He drank wine, and had it about the house. He kept a male hog about the house, and killed it, and burnt the hair off, and afterwards ate part of it. I know of his roofing his stable in very severe winter weather. I have heard him say about limiting himself in various kinds of work. Heard him say about building so much fence, and that, if he didn't, the Lord Almighty would strike him dead. That, if God would let him live a hundred years, he would put a hill into his hollow. He was at work on that hollow. He used to say that if a man would tar his arms that he would live longer. I heard him tell--he told me--that one time Squire Brown was threshing for him, and he said it rained while they were there, and the lightning killed some sheep for him, and that he was swearing about the sheep or something, and that Squire Brown reproved him, and said he ought to be thankful that it didn't kill something more valuable. He said that he didn't thank God Almighty for killing his sheep, and if he killed his stock he might as well kill him. He was a man given to that kind of expressions. From what I observed of his conduct and have told, and from the conversations I have told, and what I observed as to his sickness, I would say that I don't think he was of sound mind.”
It is not important that we should set out verbatim any of the testimony of the respondents. To some extent it is corroborative of the testimony for the contestants. About 60 witnesses were examined, nearly all of whom gave testimony as to the peculiarities, habits of life, and conduct of Towndrow; and, together, covering the period of his manhood. The testimony, taken together, does not show an insane mind, or one wanting in testamentary capacity. If the testimony is stripped of that which shows peculiarities common to a large class of men, of whose capacity to make a will there is no doubt, such as profanity, irreverence, expressions of disbelief in the existence of a God, filthy habits, a poor farmer, who sows, reaps, and threshes his grain later than others, and of a taste for gathering different stones and grasses, we have left some very unusual habits or actions, such as that his dogs at one time ate at the table with him; that he played the violin when his wife was dead in the house; that he lay on the rough box in which was to be placed her coffin; that in her sickness he seemed regardless of her comfort, and made heartless expressions as to her; that he carried dirt in a basket from the highway to fill post holes and places on his land; that he said he knew a man in England who could tell by necromancy where to find a stolen mare; that at one time he planted corn with a red handkerchief on his head, and without any apparent reason he jumped and ran some 20 rods, and hallooed very loud, with other facts that we need not enumerate. With the testimony in the case, these singular facts are stripped of much of their strange significance, and nearly all are accounted for upon the theory of his natural inclinations, beliefs, and education. The testimony is largely a culling from his many years of life of particular incidents arising in jokes or outbursts of passion, such as it is the general experience of persons now and then to witness. The instances are comparatively few in which a person lives to a similar age from whose experiences might not be gathered a chapter of incidents which, standing alone, would portray the reverse side of their lives, as seen when the sunshine and shadows are blended, and the truth made manifest from a full and impartial showing. It is said that Towndrow, at the funeral of his wife, turned the screws in the coffin lid, and stood with the others during the singing. The act of turning the screws in the coffin is unusual, but not strange for such a man;...
