Brogan v. Lynch

• Decision Date: 01 October 1927
• Docket Number: No. 37824.,37824.
• Parties: BROGAN ET AL. v. LYNCH ET AL.
• Court: Iowa Supreme Court

204 Iowa 260

214 N.W. 514

BROGAN ET AL.

v.LYNCH ET AL.

No. 37824.

Supreme Court of Iowa.

July 1, 1927.

As Modified Oct. 1, 1927.

Appeal from District Court, Crawford County; J. A. Henderson, Judge.

Action to set aside an order admitting the will in controversy to probate. Cause tried to a jury resulting in a verdict for the plaintiff-contestants. From the judgment entered, the defendant-proponents appeal. Affirmed.Sims & Page, of Denison, and Salinger, Reynolds & Meyers, of Carroll, for appellants.

L. W. Powers, of Denison, for appellees.

DE GRAFF, J.

This case involves a will contest. The defendants, nephews and nieces of the testatrix, are the beneficiaries named in the last will and testament of Catherine Kearns, who departed this life December 26, 1922. The plaintiffs are nephew and niece of the testatrix, and on December 27, 1924, filed a petition to set aside the order of probate entered January 30, 1923. The petition alleges the following grounds, to wit: (1) That said Catherine Kearns at the time of the execution of the pretended will was lacking testamentary capacity and was of unsound mind. (2) That said pretended will was obtained by undue influence exercised by said beneficiaries in said pretended will. The propositions upon which the beneficiaries under the will rely for a reversal involve the sufficiency of the evidence to sustain the verdict and the correctness of certain instructions given by the trial court to the jury. Primarily a question of fact is presented.

The testatrix, at the time of her death, was nearly 90 years of age, and until about six months prior to her death lived alone in her home in the town of Vail, Iowa. Her husband predeceased her. No children blessed her marriage. Her only heirs are the children of her three predeceased brothers. The property struggle in this case is between the children (plaintiff-contestants) of Peter and Michael Brogan, brothers of testatrix, and the defendant-proponents, the children of James Brogan, brother of the testatrix.

[1] It avails little, in a case of this character, to recite in detail the record facts; but at the point of approach it may be stated that about six months before her death, and about the time she changed her residence from her own home to the home of her nephew Peter T. Brogan, one of the beneficiaries of her will, a petition was filed to have a guardian of her person and property appointed, and upon this petition an order of appointment was entered. The decretal order bears date September 5, 1922, and recites, as a ground for the appointment of a guardian, that the said Catherine Kearns was, at the time of the commencement of said action, “a person of unsound mind and a proper person for whom a guardian should be appointed to care for her person and her property.” The will in question was executed December 18, 1922, subsequent to the appointment of the guardian and during the pendency of the guardianship. It follows, therefore, that the testatrix, at the time of the making of her will, was, prima facie, incompetent to make a will. Cahill et al. v. Cahill et al., 155 Iowa, 340, 136 N. W. 214.

[2][3] True, the judgment and adjudication in the guardianship proceeding is not conclusive as to the mental condition of the testatrix at the time she made her will. Reeves v. Hunter et al., 185 Iowa, 958, 171 N. W. 567. This rule of law was recognized by the trial court in its instruction to the jury in relation to this matter. The prima facie case so established called for rebutting evidence. A presumption of fact, not of law, is involved. These are distinct and different legal concepts. See Farnsworth v. Hazelett, 197 Iowa, 1367, 199 N. W. 410, 38 A. L. R. 814.

[4] In a strict legal sense a presumption of fact is not evidence of anything, and relates only to a rule as to which party shall first go forward and produce evidence sustaining a matter in issue. The principle is stated in Peters v. Lohr et al., 24 S. D. 605, 124 N. W. 853, wherein it is said:

“A presumption will serve in the place of evidence in favor of one party or the other, until prima facie evidence has been adduced by the opposite party; but the presumption should never be placed in the scale to be weighed as evidence.”

A court, in opinion, is privileged to put a few flowers in the legal vase by way of ornamentation, but in Beeman v. Puget Sound Traction, Light & Power Co., 79 Wash. 137, 139 P. 1087, the opinion invades the animal kingdom to secure the metaphor to illustrate presumptions of fact, and it is said:

“ ‘Presumptions,’ as happily stated by a scholarly counselor, ore tenus, in another case, ‘may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.’ ”

See, also, 22 C. J. 156; State v. Linhoff, 121 Iowa, 632, 97 N. W. 77;Brannock v. Jaynes et al., 197 Mo. App. 150, 193 S. W. 51.

[5] The contestants, however, did not rely solely upon the presumption in question. There is evidence, fairly conclusive in character, that the testatrix, at the time of the appointment of the guardian, was suffering from senile dementia and that her mental condition gradually grew worse. This disease is recognized as progressive in character. The record as to the acts and conduct of the testatrix is replete with indicia of mental, as well as physical, unsoundness. Clearly there was a jury question.

[6] Prior to the execution of this will, the evidence shows that the testatrix was childish. Her conversation was disconnected and incoherent. She was unable to care for herself or her ordinary household duties. She became confused as to the location of her own home when but a short distance from it. She could not understand why the bank would not let her have her own money after the guardian was appointed. She was quite forgetful and would repeat the same conversation to the same person and reask the same questions which had been answered at a prior time. She complained of her niece stealing her dishcloths, and complained that people were trying to get into her house at night. We cannot escape the conclusion that was reached by the jury in this case. The decisions of this court in cases of this character are legion, but no...