Brackey v. Brackey
| Citation | 151 Iowa 99,130 N.W. 370 |
| Parties | BRACKEY ET AL. v. BRACKEY ET AL. |
| Decision Date | 15 March 1911 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Winnebago County; J. J. Clark, Judge.
The will of Alv Tallack Brackey, deceased, having been presented for probate its admission was contested by the defendants on the ground of mental incapacity of the testator, and of undue influence exercised over him by the proponent Albert A. Brackey. At the close of the evidence the court withdrew from the jury the question of alleged undue influence, and submitted the case upon the question of mental incapacity only. A verdict was returned sustaining the validity of the will, and the contestants appeal. Affirmed.Oliver Gordon, H. A. Brown, and H. H. Dorland, for appellants.
Senneff & Bliss, for appellees.
The testator died April 9, 1909, at the age of 77 years. His will bears date May 4, 1908. By its terms he devised a farm of 160 acres, the largest item of his estate, to the proponent Albert A. Brackey for life, with remainder over to Albert's children. The residue of the estate is given to the children of the testator in equal shares.
1. The first question presented for our consideration is the alleged error of the trial court in withdrawing the objection of undue influence from the jury. This depends, of course, upon the inquiry whether, under all the evidence, a verdict for the contestants upon this issue could have been properly upheld by the court. A careful reading of the evidence leads us to the conclusion that the ruling must be sustained. “Undue influence” has been frequently defined by this and other courts but its essential meaning is not infrequently misunderstood. It is often urged upon courts, especially in will cases, that opportunity to exercise influence over the testator, the interest of a favored heir in securing more than his equal share in the estate, his close association with the deceased in the later years of his life, and other circumstances which are consistent with a wrongful purpose to obtain and exercise control over him in the making of his will, but are equally consistent with good faith and honesty of purpose, make a case on which a contestant is entitled to go to the jury. But such is not the rule. To make a jury question, the testimony must go farther. It may be true that a will has been made at the request and solicitation of the beneficiary, and that but for such request or solicitation it would not have been made, but this is not enough to render it void. Chambers v. Brady, 100 Iowa, 622, 69 N. W. 1015;Townsend v. Townsend, 128 Iowa, 621, 105 N. W. 110;Perkins v. Perkins, 116 Iowa, 261, 90 N. W. 55. To be “undue” and thereby to vitiate a testamentary disposition of property, the influence must be of such character and effect as to “subject” the will of the testator to that of the person exercising it, and make the paper express the purpose of such person, rather than that of the testator himself. It must be equivalent to moral coercion. See Perkins v. Perkins, supra, and authorities there cited. And that influence must have been the controlling force inducing the will at the very time it was executed. Not that the person charged with exercising such influence must have been personally present, commanding or coercing such act; but the influence must have been actually operative in inducing it. Gates v. Cole, 137 Iowa, 617, 115 N. W. 236;Townsend v. Townsend, 128 Iowa, 621, 105 N. W. 110. Not that it is necessary that undue influence be shown by direct evidence, for more often than otherwise it must be established, if at all, by collateral facts and circumstances; but the circumstances relied upon for that purpose will not be sufficient if, upon a fair review of the whole case, they are equally consistent with the theory of good faith. There is no testimony in the record that the son Albert ever requested or urged his father to...
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