Betts v. Betts
| Decision Date | 24 January 1901 |
| Citation | 84 N.W. 975,113 Iowa 111 |
| Parties | IN RE ESTATE OF JEREMIAH J. BETTS, SHEPERD W. BETTS et al., Appellants, v. JEREMIAH L. BETTS |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. C. P. HOLMES, Judge.
PLAINTIFFS are proponents of the last will and a codicil thereto, of Jeremiah J. Betts. Defendant filed objections to the probate of both will and codicil on two grounds: (1) That the testator was of unsound mind at the time both instruments were executed, to such an extent as deprived him of testamentary capacity; (2) undue influence. There was a jury trial, which resulted in a verdict in favor of contestant. Proponents appeal.
Affirmed.
S. F Balliett and W. G. Harvison for appellants.
Read & Read for appellee.
The parties to this action are children of Jeremiah J. Betts. The will of the latter, which is attacked, was executed on December 9, 1896, and, after giving absolutely to the wife of testator the personal property which in testator's hands would be exempt from execution, and also a life estate in all real estate, devises the remainder in equal shares to his children, except the contestant, to whom is given the sum of $ 100, as his full share of the estate. The codicil, which is also contested, was executed some four months later, and simply revokes the legacy of $ 100 to contestant, and declares that he is to receive nothing whatever from the estate. Testator was almost 80 years of age when these instruments were executed. He was a farmer, and contestant with his family, had lived on the farmer for a time, aiding his father in carrying on business. There was trouble between contestant and both his parents. No little feeling was engendered on each side. On the contestant's part, all this trouble is charged to wicked efforts on the part of his brothers and sisters to injure him with his father. On the other side the charge is made that the trouble grew out of contestant's unfilial conduct. During the year 1897 testator had two attacks of illness--one in March, and the other some two months later. His death, however, did not occur until January 28, 1898. It is contended by contestant that the mental infirmity of testator was exhibited first several years prior to to the making of the will, and that his mind from that time on steadily failed with advancing age, aided by an attack of the grip in 1895, and the other illnesses mentioned.
It is first argued by counsel for appellants that the verdict is not supported by the evidence. The record is quite voluminous. It would serve no useful purpose for us to set out the testimony in detail. As usual in cases of this character, it is in sharp conflict. That there was evidence sufficient to take contestant's case to the jury on the question of mental incapacity was practically admitted by proponents in the trial court, for they did not ask the court to withdraw that issue. On the contrary, they requested a number of instructions on that branch of the case. As the verdict consisted of special findings on the two issues, both in contestant's favor, if either is good there can be no reversal on the ground now under consideration. But, whatever proponents thought, it is our opinion there is a substantial conflict in the evidence. Some of us would have been better satisfied with a verdict the other way. But that is not enough to warrant us in interfering with the result. Where there is a real conflict of evidence, the case is for the jury. Phillips v. Phillips, 93 Iowa 615 at 615-618, 61 N.W. 1071. In this case it was said that the rule announced in Meyer v. Houck, 85 Iowa 319, 52 N.W. 235, does not authorize this court to determine as to whether the preponderating weight of all the evidence is in favor of one party or the other, nor to pass upon the credibility of the witnesses. See, also, on this point, Scott v. Railway Co., 112 Iowa 54.
II. The court admitted in evidence an extract from a medical work (Maudsley on Responsibility in Mental Diseases), and it is thought this was a violation of the rule announced in Bixby v. Bridge Co., 105 Iowa 293. We find there is no proper foundation in the record for the position taken by counsel for appellant. This book was first offered in evidence by contestant, and on objection the offer was withdrawn; counsel for contestant saying, in effect, they would not put it in over an objection, although the court might be willing to receive it. Later the offer was renewed. The objection was made that it was incompetent, immaterial, and irrelevant, but that no point was made "because it is contained in or is a part of what purports to be a book or treatise by the author named, but because the subject-matter is incompetent." Counsel for contestant then said: "I understand that your objection does not go to the competency of this class or character of testimony?" to which response was made: "That is it." It is clear, the objection was to the subject-matter, and not to the form in which the testimony was offered. The point now presented must be regarded as waived. The trial court was certainly justified in believing that the objection did not go to the competency of the book.
III. Contestant was permitted to testify, over objection, to a difficulty with his brother Sheperd, caused by the latter's objecting to contestant's horses being placed in his father's barn when contestant had driven out to the home place on the evening preceding the father's death. This ruling can be sustained on the ground that the testimony tended to show Sheperd's feelings towards his brother, and that this shed some light on the issue of undue influence. The mother interfered in this difficulty in contestant's behalf. What she said was repeated by contestant on the stand, and to this there is exception taken. It does not appear, however, that any objection was made to this part of the witness' testimony in the trial court.
IV. One Dr. Voldeng was an expert witness, who testified for the contestant as to the condition of the testator's mind. His evidence was given in response to hypothetical questions. On cross-examination he was asked to say whether, upon a certain assumed state of facts, he would say...
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