Cash v. Dennis
| Decision Date | 14 February 1913 |
| Citation | 139 N.W. 920,159 Iowa 18 |
| Parties | W. H. CASH and HELEN T. CASH, Appellants, v. MAUD F. DENNIS, Appellee |
| Court | Iowa Supreme Court |
Appeal from Taylor District Court.--HON. THOMAS L. MAXWELL, Judge.
ACTION to probate a will objected to on the ground of want of testamentary capacity and undue influence. Verdict and judgment for contestant, and proponents appeal. --Affirmed.
Affirmed.
McCoun & Burrell and Sullivan & Sullivan, for appellants.
G. B Haddock and Frank Wisdom, for appellee.
On the 10th day of April, 1911, the will in controversy in this suit was filed with the clerk of the court of Taylor county for probate, and on the 1st day of May, 1911, Maud F. Dennis contestant herein, filed objections to the probate of the will on two grounds: (1) That the execution of the will was procured by undue influence. (2) That the testator was, at the time of the making of the will in controversy, of unsound mind.
On the issues thus tendered, the cause was tried to a jury, and a verdict rendered for contestant, finding that the will was not the last will of said George W. Tanner, and judgment was entered accordingly. From the judgment thus entered, the proponents, W. H. and Helen T. Cash, appeal.
It appears from the provisions of the will in controversy that the testator, George W. Tanner, after making provision for the payment of his just debts and funeral expenses, bequeathed all his property to proponents. It appears that one of the proponents, W. H. Cash, was a physician; that he had been the family physician of the testator; that he attended upon testator's wife during her last sickness; that she died September, 1909; that on or about August, 1910, he went to reside with proponents, and continued to reside with them up to the time of his death that while so residing with them the will in question executed that after the death of Mrs. Tanner proponent W. H. Cash continued to wait upon and attend testator as a physician; that the testator was in feeble health; that prior to his taking up his home with the proponents he had visited them frequently; that the relationship of physician and patient existed between the testator and proponent, W. H. Cash, during all the time subsequent to the death of Mrs. Tanner.
It appears, further, that the contestant, Maud F. Dennis, was a niece of testator, George W. Tanner, and that prior to the execution of the will in controversy, and on the 16th day of September, 1909, George W. Tanner devised all his property to the contestant, Maud F. Dennis. Will so executed was witnessed by proponent W. H. Cash; that at the time of the execution of the will Tanner also made a lease of his real estate to the husband of Mrs. Dennis, and that thereafter Mrs. Dennis and her husband took possession of the real estate under the lease; that at the time of the execution of the will devising the property to Mrs. Dennis, and the execution of the lease from Tanner to her husband, a contract was entered into between Mrs. Dennis and testator, by which it agreed that in consideration of $ 500 she would provide him a home, board, care, etc., for one year, and it appears from said agreement that it might be terminated by either party before the expiration of the year, when either became dissatisfied, and in that event the testator should pay Mrs. Dennis $ 10 a week up to the time of the termination of the contract; that the testator continued to live with Mrs. Dennis, under said agreement or contract, from some time in November, 1909, until about August, 1910, when he left and took up his home with proponent; that while residing with Mrs. Dennis he frequently visited with the Cashs and it is claimed by the Cashs; that he went to live with them under an agreement that if they kept him the balance of his days, treated him kindly, and cared for his wants he would leave them all his property.
It appears, further, that the testator, at the time of the transactions hereinbefore set out, had no children living; that there was one child born to him, but she was, at the time, of these transactions, dead and that this daughter, of whom testator was very fond, bore a resemblance to Mrs. Dennis.
It appears, further, that the only relatives of the said George W. Tanner that were positively known to be living at the time of his death were the contestant, Mrs. Dennis, and two of her brothers, being children of testator's deceased brother.
It appears that at the time of Mrs. Tanner's death the contestant and her husband were living in Colorado, and that they returned to Iowa at the request of testator; and, in consideration of their returning and taking up their home with him, the will, lease, and contract, hereinbefore referred to, were made.
It also appears that prior to the execution of this will in favor of Mrs. Dennis and the execution of the lease and contract, hereinbefore referred to, the testator, George W. Tanner, had executed a will in favor of contestant's little son, then about eleven years of age, which will was destroyed at the time of the making of the will in favor of Mrs. Dennis.
There was considerable testimony offered for and against contestant's claims that the will was obtained by undue influence, and that the testator was wanting in testamentary capacity and this evidence, in many respects, is conflicting. The relationship between contestant, her family, and the testator was fully shown by the evidence. His mental attitude toward her and her family, prior to the execution of this will and prior to his going to live with proponents, was also shown. His relationship to the proponents, their conduct towards him, and his mental attitude towards them was also shown. His physical condition during this time and his need of medical advice and treatment was also shown; and that the proponent W. H. Cash waited upon him and attended him as his physician is not disputed.
We have read the whole record with care, and find that the verdict of the jury has support in the evidence, and ought to stand, unless some error in the submission of the case to the jury, of which complaint is made, prejudicial to the interests of proponent, appears.
The grounds upon which plaintiff seeks reversal may be grouped into four: (1) That the court erred in the admission and rejection of testimony offered. (2) That the court erred in submitting to the jury the question of want of testamentary capacity on the part of George W. Tanner at the time of the making of the will. (3) That the court erred in not giving the instructions asked by the proponents. (4) That the court erred in giving instructions four and ten on its own motion.
I. The first error complained of in the introduction of evidence is that the court sustained objection to a question asked by proponents of a witness, Elmer Brown, as follows: "You considered him (meaning Tanner), at the time, of ordinary intelligence and capable of transacting ordinary business?" This question was objected to, and objection sustained, and in this we feel that the court was right, for the reason that the same question had already been asked and answered by the witness, and for the further reason that it was not cross-examination of the witness as to any matter drawn out upon the direct examination. Nor was the foundation laid for this testimony, even if it had not been asked and answered before that. Witness, on direct examination, was not asked anything touching the mental capacity of the testator nor was he called as an expert on that point.
The second error complained of is based on the action of the court in refusing to strike out certain evidence given by the witness John Gordon. It appears that some time subsequent to the making of the will the witness Gordon, on the invitation of Dr. Cash, visited the Cash home; that while there he had a conversation with Mrs. Cash, one of the proponents, in which he claimed that she said to him, in the presence of testator, that at the time testator resided with Mrs. Dennis that his health was poor; that they treated him awful mean, and made him sleep upstairs, where it was cold, in a room without a fire, and that he could not eat the food they provided for him; and that if he stayed there he would die. The witness having detailed this conversation had with Mrs. Cash, the proponents moved to strike it out, on the ground that it was not made in the presence of both the proponents, and that it could not be used as evidence against the other, and that it was made after the execution of the will. This motion was overruled, and complaint is made of this ruling.
It appears from all the evidence that the proponents are husband and wife, and that the bequest was a joint bequest; that whatever improper influences were exercised on the testator to procure the will were for their joint benefit; and it further appears, with a reasonable degree of certainty, that the other devisee was present at the time. This conversation, however, had with Mrs. Cash, after the execution of the will, was competent for the purpose of showing the relationships that had been established between the testator and proponents, and the influence that they had acquired over him, she, at the time of the conversation, sitting by testator and stroking his head, and for the further reason that it appears that these facts detailed by her were not true, and testator failed to enter any denial thereof. At least, it was a fact to be considered by the jury, with the other testimony, in reaching their final conclusion upon the issues tendered.
The third objection urged to the testimony relates to the action of the court in sustaining an objection to a question asked the witness Gordon, on cross-examination, as follows "Did you tell them you...
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