Davis v. Davis (In re Crissick's Will)

• Decision Date: 19 February 1916
• Docket Number: No. 29581.,29581.
• Citation: 156 N.W. 415,174 Iowa 397
• Parties: IN RE CRISSICK'S WILL. DAVIS ET AL. v. DAVIS ET AL.
• Court: Iowa Supreme Court

174 Iowa 397

156 N.W. 415

IN RE CRISSICK'S WILL.DAVIS ET AL.

v.DAVIS ET AL.

No. 29581.

Supreme Court of Iowa.

Feb. 19, 1916.

Appeal from District Court, Jones County; F. O. Ellison, Judge.

Trial on objections to probate of will. Verdict for proponents by direction of the court. Contestants appeal. Affirmed.Jamison, Smyth & Gorman and Barnes & Chamberlain, all of Cedar Rapids, for proponents.

Remley & Remley and E. A. Johnson, of Lisbon, for contestants.

SALINGER, J.

I. The objections made, as defined by the brief of appellants, are: (1) That by reason of the great age of decedent, 89 years, her mind was enfeebled, and that for many years she had been afflicted with a bodily ailment which also affected her mind, so that she did not have mental capacity sufficient to understand the nature of the transaction and to execute a will; (2) that decedent was under the complete control of her husband, that he exercised undue influence over her by which her will was overcome, that she had no exercise of a free will on her part, and that the alleged will was caused to be executed by the husband fraudulently and for the purpose of preventing deceased from disposing of her property as she saw fit.

At the close of all the evidence the proponents moved that the court direct the jury to return a verdict for the proponents upon the grounds: (1) That there is not sufficient evidence to warrant submission to the jury; (2) that contestants have admitted in the record that the instrument proposed for probate was duly executed and signed as required by law. The court sustained the motion. An assignment presents that this was error. Others present exclusions of offered testimony.

[1][2] II. Addressing ourselves to the testimony which was put in, and applying the rule that on review of the direction of a verdict the defeated party has the right to have the testimony introduced construed as strongly in his favor as reason will permit, we find: First, that we must eliminate much testimony which is inherently incompetent. For instance, no one but decedent or her husband can say that whenever anything came up the husband would settle what should be done. No one but decedent can say that nothing was ever said to her, or that she at no time knew of certain things, and the like. So subtracting, the evidence is this:

The husband was 88 years old when the alleged will was executed; his wife a little younger. He was overbearing in disposition and in the treatment of his wife, was gruff, had a loud voice, and was very profane and rough in language, swore in the presence of ladies and concerning the most serious of matters. When he was in the house he did most of the talking. He would not let her talk about her business when he was present. When anything came up, he would say what was to be done, and would say that was the end of it. He would not let her do as she wanted to. She usually kept still; had nothing to say. She was unable to tell from her bank book how much money she had in the bank. He had charge of her money matters, and would go to her for money. He was grasping for money, and, if he wanted any at any time, he always got it. He signed her name to contracts as her agent and collected the interest and rents. He charged her for what he did for her. She was feeble, weak, gentle, and of retiring disposition, while he was burly, loud-talking, and grim. She was hard and dull of hearing, and one had to speak clear in order to make her hear at all times.

A witness who had opportunities for observing said he knew of no general breakdown in her during the last ten years of her life, unless it were in her memory; that this was not as bright in the last few years as it was years ago; that he cannot tell when he first observed a change in this regard, and was not with her often enough to observe; that she was just like other people when she got old; that she failed a little in the last few years, as people do with reference to their memory as they get older; that the change was that her mind was not just as clear; that she was not active; and that during the last two years of her life she was very feeble. She would often start to the pantry for a cup or something for dinner, and forget what she went out to get, and maybe get something else, and return to the kitchen without recalling what she went after. This happened quite often at meal times, and grew worse as she got older. She would give several dishes of the same kind of food to persons at the table, and would put her notes and things in boxes and displace them about the house. When the witness saw her next, after he had been present at the execution of the alleged will, he had to tell her who he was, because she did not appear to know him. She would often call him Milt, which is the name of his brother, and sometimes she would not notice when people came in, and would not know them, and could not call their names right. After this witness had declared that he did not know whether being childish meant being forgetful or hard to get along with, and had inquired whether it did consist of these, he said that decedent was forgetful and childish in her talk and actions, and that this increased as she got older, but that he will not say she was real childish in any way more than any other old person would be. She often had heart spells. With advancing years these were perhaps more frequent in recurrence, and they became harder each year and affected her worse each time. She had one of these spells a few hours before the making of the will, and always laid on a couch when she had them. On the morning of the day on which the will was made she laid on the couch about an hour. These spells generally left her rather nervous and weak, and she was weak on the day the will was executed. When the scrivener came, she looked as though she was weak, tired out, and nervous, and said she did not know whether she could write, and the scrivener placed the pen in her hands and his hand upon hers and moved it along, thus causing the signing of her name. The morning after the will was made she was uncertain what she had signed, and was very much worked up and excited. She said then she could not do as she wanted to because her husband would not let her, and she was crying and nervous, said she was not satisfied with her will, that her husband wanted it, and that she and he made it. She complained he would not allow her to do as she wanted to. She told Hasty her husband would not allow her to do as she pleased, that she could not do as she wanted to because he would not let her, and she told Mrs. Milner that the will did not suit her.

In the old will the first item gives to the husband one-half of his wife's property absolutely. A codicil modifies this to the extent of deducting from this half $2,050. Both this will and the codicil were made very early in the year 1903. The will in suit was made on January 18, 1911, something like eight years later. The first item in the new will gives the husband one-half, but does not make the deduction effected by the codicil to the earlier will. Item 2 is alike in both wills. It gives the husband for his life the net annual income of the half which is not devised to him absolutely. The wife made no objection to the one change thus far accomplished--to relieve the half absolutely bequeathed from the charge of $2,050 to which it was subjected by the codicil to the earlier will. For aught that appears, testatrix may not have remembered after eight years that there had been such a subtraction in the earlier will, or the reasons that dictated the subtraction may have ceased to exist during these eight years. Item 3 in the old will gave Ed. Davis $2,000. The new will gives him $1,000. The testatrix made no objection to this change, nor does it appear that the husband said anything whatever to induce her to consent to such change. The evidence merely shows that the change was dictated in her presence, without objection on her part. Item 4 in both wills gives to Eliza Fountain, Bert and Lucy Milner, to Lucy Chamberlain, and, respectively, to the Methodist and the Presbyterian Church of Wyoming, and to Naomi Eastman, the sister of the decedent, each $500. It is not significant that testatrix made no objection to a rewriting of these seven bequests of $500 each, and certainly no influence was exercised to make her adhere to the older will in these seven respects, and there is nothing to indicate why she should wish or that she desired to make a change as to these. It is a fair presumption that she remained silent as to these because she was satisfied to have the old will thus duplicated. In the older will J. M. Davis was not mentioned. When the point at which these $500 bequests were repeated had been passed, the testatrix, for the first time, took an affirmative part, which, while it proves that she had not spoken before, also proves that there was nothing to interfere with her speaking had she so desired. She made the suggestion that she wished J. M. Davis to have a $1,000 bequest, the same amount as the one given to Ed. Davis in the new will, all of which indicates, for one thing, that she had a thorough understanding of what was being done with the new will, and approved of reducing Ed. from $2,000 to $1,000, and of making a change by making J. M. Davis a legatee in some amount. At this point the husband said that J. M. Davis should not have more than $500; it should be that or nothing; and the testatrix remained silent. It does not appear that this was due to any fear of the husband, and it appears, as said, that she was not in fear in making the suggestion she did make. It does not appear why she remained silent when the husband insisted that the legacy to J. M. should not be larger than $500. It is fair to assume that she yielded to the judgment of her husband as to a matter on which she had no very insistent desires, for she did not give J. M. Davis...