Cory's Estate, In re

Citation169 N.W.2d 837
Decision Date24 July 1969
Docket NumberNo. 53306,53306
CourtUnited States State Supreme Court of Iowa
PartiesIn the Matter of the ESTATE of Ernest C. CORY, Deceased. Melville V. CORY, Plaintiff-Appellee, v. ANKENY STATE BANK, Ankeny, Iowa, as Executor of the Last Will and Testament of Ernest C. Cory, Deceased, Edith Cory, Gladys Spring, Albert D. Cory, and All Unknown Claimants and All Persons Unknown Claiming any Right, Title or Interest, However Described in and to the Estate of Which the Said Ernest C. Cory Died Seized, Defendants, Edith Cory, Gladys Spring and Albert D. Cory, Defendants-Appellants.

Coppola & Trout, Des Moines, for appellants.

Smedal, Maurer & Brewer, Ames, Charles E. Feight, Ankeny, and Herrick, Langdon, Belin & Harris, Des Moines, for appellee.

MOORE, Justice.

This is a will contest case. The will being contested was dated January 18, 1965 and filed June 3, 1965 in the Polk County district court. It was admitted for probate on June 14, 1965. Contestant filed his petition to set aside probate and contest will on November 2, 1965.

Contestant alleged lack of testamentary capacity and undue influence as grounds for denying validity of the will. The court withdrew the issue of lack of testamentary capacity but submitted the issue of undue influence for jury determination. The jury returned a verdict for contestant and the order admitting the will to probate was cancelled. Proponents appeal alleging error in overruling their motion for a directed verdict and various evidentiary and procedural errors. We affirm.

The record in this case, as is true with most will contests, is voluminous. We set forth only so much of the evidence as is necessary to a fair understanding of the issues.

The testator, Ernest C. Cory, was born March 16, 1881, died May 30, 1965 and had been married three times during his lifetime. He was married to Nellie Cory, in 1900 and divorced from her in 1917. The couple lived in Oklahoma and had two children, Albert Cory and Gladys Cory Spring, who are defendants-proponents in this action. The couple were divorced and both returned to Elkhart, Iowa. In 1921 Nellie and the two children moved to California and have lived there since. Nellie died in 1945.

In 1917 Ernest married Edna Cory and lived with her in Elkhart and later in Ankeny, Iowa until she died September 19, 1963. This couple had one child, Melville V. Cory, plaintiff-contestant in this action. Testator was in the hardware business for 46 years. He retired in 1945.

On November 7, 1965 Ernest married Edith Cory. She was his wife when he died and is a defendant-proponent in this action.

Although Albert and Gladys moved to California with their mother, they were in touch with their father from time to time. Albert visited his father in Iowa in 1925, 1945, 1949 and 1964. In 1949 Albert was in Iowa and drove his father to California for a visit. Albert lived with his father and Edna, the second wife, for a winter in 1917 or 1918. He also saw his father twice in Arizona and six times in California in 1927, 1937, 1945, 1947, 1952 and 1965. On this latter date his father executed the will in question.

Mrs. Spring testified she visited her father in Iowa four times through the years. Her last visit in Iowa was in 1948. Her father visited her in California some eight or nine times. On the last visit in 1965, Ernest and Edith stayed with Gladys seven days and with Albert ten days.

In 1956 testator made a will leaving all of his estate to his then wife, Edna, if she survived him. If Edna predeceased him, the will provided the entire estate was to go to his son Melville; if Melville predeceased the estate was left in trust for Melville's children, testator's grandchildren. While married to Edna testator helped his son Melville by giving him a home and setting him up in the hardware business in Ankeny, (testator's store, which he later gave to Melville, was in Elkhart).

Testator was very close to his wife Edna. After her death efforts were made by his son Melville to provide a housekeeper for testator but this effort failed.

Various witnesses testified that at about this time testator showed evidence of loss of memory, some confusion and lack of interest in and grasp of current events. Others testified he was perfectly normal. On July 9, 1964 testator signed a petition for a voluntary guardianship asking that his son, Melville, be appointed guardian. There was also reference to a trust agreement said to have been prepared after Ernest decided to remarry but before the marriage was performed. No such agreement was produced in evidence. An antenuptial agreement was prepared and signed by Ernest and Edith on November 3, 1964.

I. We turn first to proponents' motions for a directed verdict and review the evidence in the light most favorable to contestant, rule 344(f)2, Rules of Civil Procedure. Proponents' first assigned errors relate to failure to direct a verdict at the close of contestant's evidence and failure to direct a verdict at the close of all the evidence. We consider the assignments together. If the trial court was right in its ruling on the final motion it is immaterial whether it was right in the first ruling. Smith v. Smith, 258 Iowa 557, 562, 139 N.W.2d 453, 457, and citations.

The jury could reasonably find from all of the evidence that after his second wife's death in 1963, Ernest Cory was a lonely man whose mental faculties were beginning to slip to some degree due to age and arteriosclerosis. There was evidence of loss of memory, some confusion and general deterioration.

Testator lived alone for a little over a year after Edna's death. He visited his son Melville frequently and also visited the neighbors. During the winter of 1963--64 he went to a motel vacation spot in Texas as had been his custom for the past fifteen years. The owner of the motel and her employee both testified they noticed a change in Ernest after his wife died. During this stay he became homesick and unhappy. The motel operator sent for Melville to come to Texas to take him home. Dr. Nord, testator's physician and a friend of Melville, also went to Texas. Dr. Nord testified at length as to his acquaintance with Ernest and Edna during earlier years, his observation of testator and to various specific incidents evidencing deterioration after Edna's death. He testified decedent had arteriosclerosis and died of coronary artery disease. He was asked to express opinions both as to Ernest's competency and susceptibility to influence. His answers were: 'I think I previously stated that I thought his general demeanor was such that a progressive loss of his mental acuity over a period of several years and and I make no specific claim that in any designated length of time that he lost his competency. I think the efficiency of the mind gradually decreased. I think that will be all. * * *. In my opinion, Mr. Cory has been very susceptible to the influence of others no matter who was trying to influence him.'

Testator and his third wife had entered into an antenuptial agreement three days before their marriage under which the spouses would make no claim on the other's property except that the wife would receive a flat $2500 from Ernest's estate if he died within a year plus $1000 for each year he lived and the parties stayed married up to a maximum of $5000. Edith Cory, Ernest's widow, contended this agreement was made at Melville's insistence.

Ernest and his new wife Edith went to California shortly after their marriage. While they were there Albert Cory contacted Mr. Mathon, a lawyer, and arranged for an interview for the purpose of making a will. Mr. Mathon testified at length and told of being contacted by a Mr. Bauch, an acquaintance of his who had been selling merchandise to Albert Cory's wife for many years. Mr. Mathon did not represent or know Albert or any of the Corys. When told the potential testator was old man and the will might be contested, he arranged for an interview and evaluation by Dr. Brandt, a local psychologist. This resulted in an opinion that testator was competent. After the evaluation the lawyer interviewed Ernest in the presence of Edith, Albert and Josphine, Albert's wife. The relatives were asked to leave and the lawyer interviewed testator in private. Part of these interviews were taped.

Testator in his private taped talk with his lawyer clearly expressed a disinclination to make another will until he could go back to Iowa, find his other will and do something about a $10,000 note he had co-signed for Melville. At the interview testator did not order Mr. Mathon to draw the will, although he told the lawyer what he wanted in the will if one was to be drawn.

The lawyer several times impressed on Ernest the desirability of making a will immediately. We do not imply that Mr. Mathon went beyond the bounds of propriety. Nevertheless, the testator, after the strong recommendation of the lawyer, refused to order the will drawn. This 83-year-old man then went to Albert's home and the next day the will was ordered drawn. The record is silent as to who actually phoned the lawyer and told him to go ahead with the preparation of the will.

The lawyer prepared the will and forwarded it to Mr. Cory by special delivery letter. Execution took place in Albert Cory's home in the presence of Edith, Albert, his wife and other persons. Judith Stevens, step-daughter of Albert, acted as notary public. Three witnesses, all of whom either worked for Albert Cory's wife or were married to one of her employees, witnessed the will. The executed will was returned to the lawyer who kept it until notified of Ernest's death. After Ernest and Edith returned to Iowa no mention was made of the will.

Much could be quoted from the taped recording of the lawyer's interview which is beneficial to each side. We note only two quotations. At one point Ernest said: 'Bert (Albert) brought up something here last night. He said, why don't you divide...

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  • Burkhalter v. Burkhalter
    • United States
    • United States State Supreme Court of Iowa
    • December 20, 2013
    ...undue influence contained in Iowa Civil Jury Instruction 2700.5 and supported by caselaw. See, e.g., [841 N.W.2d 99]In re Estate of Cory, 169 N.W.2d 837, 842 (Iowa 1969); In re Estate of Roberts, 258 Iowa 880, 888, 140 N.W.2d 725, 730 (1966). Under the circumstances, Steven sees no undue re......
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    ...no error presumable, therefore affirmed.) In concluding that the majority rule was the best choice, the Iowa court in In Re Estate of Cory (1969) (Iowa) 169 N.W.2d 837, 845, relied on the rationale of Dulaney v. Burns (1928) 218 Ala. 493, 119 S. The definition of words in our standard dicti......
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