Blakely v. Cabelka

• Decision Date: 23 October 1928
• Docket Number: 39130
• Citation: 221 N.W. 451,207 Iowa 959
• Parties: ANNIE ZARUBA BLAKELY, Appellant, v. JOHN CABELKA, Appellee
• Court: Iowa Supreme Court

221 N.W. 451

207 Iowa 959

ANNIE ZARUBA BLAKELY, Appellant, v. JOHN CABELKA, Appellee

No. 39130

Supreme Court of Iowa, Des Moines

October 23, 1928

REHEARING DENIED MARCH 8, 1929.

Appeal from Guthrie District Court.--E. W. DINGWELL, Judge.

Proceeding to probate the will of Joseph Zaruba. Objection thereto was made by appellant. The testamentary document was admitted to probate, and the contestant appeals.

Affirmed.

David S. David and W. D. Milligan, for appellant.

Moore & Moore and Howard & Sayers, for appellee.

KINDIG J. STEVENS, C. J., and EVANS, FAVILLE, and WAGNER, JJ concur.

OPINION

KINDIG, J.

There have been two previous trials of this controversy in the district court, and the same number of appeals here. See Blakely v. Cebelka, 199 Iowa 946, 203 N.W. 19, and Blakely v. Cabelka, 203 Iowa 5, 212 N.W. 348.

Three different wills were executed by Joseph Zaruba. John Cabelka, the appellee, was named executor in all of them. This nominee for such trust was a life-long friend of the said Joseph Zaruba's. The first will was executed some years before September 6, 1921. On September 6th, aforesaid, Joseph Zaruba, accompanied by his son, Andy, and John Cabelka, went to the bank in Yale, for the purpose of having a new will prepared by the cashier, Guy E. Heater, who declined to do so, but suggested that Mr. Earl W. Vincent, an attorney at Guthrie Center, was competent to draw the new instrument. Joseph Zaruba consented; so he, his son, Andy, and Cabelka accordingly went to Guthrie Center the same afternoon, where the second will was drafted and typewritten by Mr. Vincent. After the testament was completed, it was noticed that there was an error in the description of some real estate, and correction was made by pen interlineation, and as thus changed, execution thereof was duly made by Zaruba. But Mr. Vincent suggested that he disliked the interlineation, and that he would have his stenographer retype the entire will, and send it over to Yale for execution. That was done, and Zaruba, on September 10th of the same year, then signed the third will, in the presence of the statutory witnesses. Such later writing in substance and phraseology was identical with the rejected, interlined copy.

At that time, Joseph Zaruba was 82 years old. He was born in Bohemia, and immigrated to America when a young man, where he married, and became a farmer in Johnson County, prior to 1876. Then, afterwards, he removed to Guthrie County, where he died, on September 10, 1923. Ten children were born as the fruit of this marriage. Following this, the first wife died, and Zaruba again married, but he and his second wife had no children.

In the first will, executed before 1921, Zaruba wholly ignored the contestant, his daughter, Annie Zaruba Blakely. However, he did provide therein that each of her children should receive a specific bequest of $ 200. Contestant left her father's home and married at a time when her mother was an invalid, as a result of a paralytic stroke. Mrs. Kunce, another daughter, had also married. Therefore, the father had no housekeeper to look after his small children, who were all boys. Consequently, he was much disappointed in Annie's marriage and departure from home,--so much so, in fact, that he declared he would disinherit her. Subsequent to Annie's marriage, Joseph Zaruba continued to keep house with the boys by "baching," and while thus doing, they carried on the farm operations. They were unable to hire satisfactory help, and finally Zaruba obtained the services of an elderly lady from Omaha, who afterwards became his second wife.

Before entering into the second marriage relationship, however, Joseph Zaruba went to Guthrie Center, obtained the services of an attorney, who prepared deeds conveying to his sons different tracts of land, but reserved a life estate for himself, and provided that, upon his death, the grantees should pay certain specified sums to the girls, Annie Zaruba Blakely and Emma Kunce. A son, Leopold, thus received one tract of this real estate. Afterwards, however, this boy became involved in bankruptcy, and the property was taken by the trustee therein, subject to the father's life estate. These complications worried Joseph Zaruba, and were one of the causes why he desired the change in his will.

Being a Bohemian, he was not proficient in the English language, but could carry on a conversation therein. When in Mr. Vincent's office, on September 6, 1921, and in the bank at Yale, on the 10th of the same month, the new will was read and explained to him. For all practical purposes, the third will was the same as the first, with the exception of the gift to Leopold and bequests to the daughters. While reconsidering the first will in Mr. Vincent's office, preparatory to the dictation of the second, Zaruba suggested that he would eliminate the provisions for the contestant's children, as well as that made for the benefit of Emma Kunce, because he had arranged to give these daughters money, in lieu of those bequests. Accordingly, on September 10, 1921, when the third will was executed, Joseph Zaruba took his certificates of deposit, and so arranged them that they would be payable to the contestant and her sister, Emma Kunce, in the sum of $ 1,000 each. It appears that these certificates were afterwards delivered to and cashed by the donees.

Finally, the third will was offered for probate by John Cabelka, the executor therein named, and in due time, objection was interposed thereto by Annie Zaruba Blakely, the appellant. All the beneficiaries and devisees designated in the will were sons of the testator's. Two grounds were presented by appellant for the contest, which were that: First, the testator was a person of unsound mind; and second, that the will was obtained by undue influence. During the trial, however, the district court directed a verdict against the contestant on the ground of undue influence, and the only issue submitted to the jury was that relating to testator's mental capacity.

The jury found for John Cabelka, the proponent and the executor named in the will. Hence the appeal.

I. Consideration of the entire record has been made, and clearly there is no basis therein for submitting to the fact-finding body the issue of undue influence. Evidence to sustain that proposition is lacking in the case at bar, as it was in the former hearing. (Blakely v. Cabelka, 203 Iowa 5, 212 N.W. 348.) We said in that opinion:

"As to the question of undue influence, under the repeated holdings of this court there was not sufficient evidence to take this question to the jury; hence the ruling of the court on this proposition is correct."

No material change in the record concerning that phase of the controversy is presented here. Wherefore, the decision in 203 Iowa 5 is the law of the case, and the district court acted correctly in directing the jury to find for appellee to that extent.

II. Ample proof is found in the record sustaining the testator's mental capacity and the validity of the will, and it is very doubtful, indeed, whether or not contestant brought forth sufficient evidence entitling her to have the jury pass upon the testator's mental unsoundness and the will's validity. If she did not do so, her many objections would become immaterial, because, in that event, the result of the trial would have been the same, had the alleged erroneous rulings and procedure been in accordance with appellant's contention. Lahner v. Schaum, 198 Iowa 1388, 201 N.W. 80; Dye Produce Co. v. Davis, 202 Iowa 1008, 209 N.W. 744; Mulroney Mfg. Co. v. Weeks, 185 Iowa 714, 171 N.W. 36; Brown v. Hunt & Shuetz Co., 163 Iowa 637, 145 N.W. 310. Lahner v. Schaum, supra, aptly suggests:

"In other words, the court would, in any event, have been compelled to direct a verdict in behalf of appellees; and, had each of the rulings on the evidence been otherwise than they were, the result would have been the same."

Nevertheless, in view of our subsequent discussion herein, it is not necessary to extend this opinion unduly for the purpose of setting out all the evidence to support the disposal of the appeal on this theory.

III. Forty-one assignments of error are made. Few, if any, are supported by the citation of applicable authority. Some are in the blanket form. Concerning this, we said in Ryan Bros. v. Rate, 203 Iowa 1253, 213 N.W. 218:

"Our rules require that, when errors are assigned or points are to be made in this court, they must specifically point out the matter complained of and the objections thereto. Omnibus errors will not be considered, but will be disregarded. * * * The thought is that, in assigning these points or errors, the assignment must not only state the points, but the reason or basis for the complaint."

All those assignments entitled to consideration, under our rules, have been carefully reviewed, and we find that in most instances the alleged error does not appear, when considered in the light of the amended abstract.

IV. Grievance is made by appellant because the district court excluded much of her evidence, under the provisions of Section 11257 of the 1924 Code, which is as follows:

"No party to any action or proceeding, nor any person interested in the event thereof, * * * shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, * * * against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person * * *."

Claim is made by appellant that John Cabelka was simply a proponent, and not an executor, because not yet appointed as such, although named for that trust in the instrument. Further, it is the theory of ...