Blakely v. Cabelka
| Citation | 212 N.W. 348,203 Iowa 5 |
| Decision Date | 15 February 1927 |
| Docket Number | No. 38073.,38073. |
| Parties | BLAKELY v. CABELKA. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Guthrie County; W. G. Vander Ploeg, Judge.
This is a contest over the probate of a will. The jury found for the proponent, and contestant appeals. Reversed.David S. David, of Oskaloosa, and W. D. Milligan, of Guthrie Center, for appellant.
Moore & Moore, of Guthrie Center, for appellee.
This is the second appeal in this case, the first appeal being reported in 199 Iowa, 946, 203 N. W. 19. The will in controversy was executed on the 10th day of September, 1921, by Joseph Zaruba, who was at that time 82 years of age. He was a Bohemian by nativity, emigrated to America when a young man, where he married and settled in Johnson county, Iowa, some time prior to 1876, then removed to Guthrie county, Iowa, where he died on the 10th day of September, 1923. He never learned to read, write, or speak the English language very well. He was twice married. There were ten children born to the first marriage, and none to the second. Both wives predeceased him, and, after the death of the second wife, he lived for some eight years with his son Rudolph, and later with his son Ludie until the time of his death. The death of his son Rudolph was a great shock to him. About 20 years prior to his death, the deceased was injured in a cyclone which destroyed his house. He was struck on the side of the head by some object, and one ear was torn nearly off. From that time he was hard of hearing. Five sons and two daughters survived him, all of whom were married. There seems to have been no ill feeling in the family.
This is a sufficient statement of the facts, so far as the questions urged for reversal are concerned.
The contestants raised three questions: The due execution of the will, undue influence, and mental incapacity. The court withdrew from the consideration of the jury the question of the execution of the will and undue influence and submitted the question of mental incapacity, and the jury returned a verdict in favor of the proponent.
[1] We have reviewed the record and find that there was no evidence whatever on the part of contestant on the question of the execution of the will, and the court's ruling was right in withdrawing this question from the consideration of the jury and holding in favor of proponent.
[2] 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. The fact situation in this case differs materially from In re Estate of Workman, 174 Iowa, 222, 156 N. W. 438.
[3] In the trial, contestant had a witness on the stand by the name of Dr. Bos, who testified as an expert. He had never seen the deceased during his lifetime. The contestant propounded to him a hypothetical question, covering three pages in the abstract. This question was objected to, and, under the ruling of the court, reference in the hypothetical question to the disposition of the property made by him in the will was stricken out. With the question thus deleted, the witness was permitted to answer and said:
The contestant urged that the part stricken from this hypothetical question should have been permitted to remain in the question. With this we cannot agree. Of course, this witness was used for the purpose of testifying that, under the facts stated in the hypothetical question, the deceased was of unsound mind, and the fact that he so testified, even after the parts of the hypothetical question were stricken, gives the benefit of this testimony to the contestant with the same force and effect as though the parts stricken had been included in the question. In other words, the fact that a witness gives the answer desired on a hypothetical question, including fewer facts than the interrogator wishes to include in the question, is a matter about which he cannot complain so long as he gets the desired answer.
[4] Contestant also used a witness by the name of Dr. W. A. Shidler. This doctor knew nothing about the deceased until May, 1923, when he was first called upon to attend Joseph Zaruba. This was about four months prior to his death. He described the condition of his patient at that time, and was asked whether he would be able to determine then whether he was of sound or unsound mind. This question was objected to and the objection sustained. It was evidently a preliminary question. The real question as to whether or not, in the opinion of the witness, Jacob Zaruba at the time witness was attending him was of sound or unsound mind was not propounded to the witness. More than that, this question had to do with the condition of the deceased at a time long after the execution of the will, and the real question was what his mental condition was at the time of the execution of the will. We see no error in the ruling.
[5] Two witnesses to the will, Hitchins and Heater, testified in this case. It appears that they also testified in the first trial of the case. Their testimony was taken early in the trial of the case, and, after cross-examination, they seem to have been excused, and later, at the close of contestant's case, there seems to have been an offer by contestant of a part of the cross-examination of Heater and Hitchins taken at a former trial. The court held that this was not admissible. This record does not show that the transcript was offered, nor does it show what was in the transcript from which the contestant was then attempting to question Heater and Hitchins, nor does it show what their testimony was in such transcript. We therefore have nothing before us on which we can base a conclusion or pass on the question as to whether or not the court committed an error. The court's ruling must therefore stand as made.
[6] In one of the instructions given, the court, among other things, said:
“Whether the said Joseph Zaruba was able to speak or understand the English language, or whether he was able to read and write the same, is wholly immaterial.”
It is urged that inclusion of this paragraph in the instruction is erroneous. Taking this part of the paragraph by itself, the objection made is probably correct, but following this part above quoted, and as a part of the same paragraph, the court further said:
“Except as the evidence bearing upon the question aids you in determining whether or not Joseph Zaruba, at the time he signed the instrument in question, was or was not possessed of testimentary capacity, so as to be able to make a valid will.”
Reading the paragraph as a whole, the objection of appellant is not tenable.
[7] The next complaint is that the court erred in overruling the motion for a new trial and exceptions to instructions. (See page 91, appellant's abstract.) This is not such an assignment of error as required by our rules (see rule 30), and does not entitle the contestant to consideration of the same.
[8] In Inst...
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