Denning v. Butcher

• Decision Date: 25 May 1894
• Citation: 59 N.W. 69,91 Iowa 425
• Parties: SARAH DENNING et al., Contestants, Appellants, v. RICHARD BUTCHER et al., Proponents
• Court: Iowa Supreme Court

59 N.W. 69

91 Iowa 425

SARAH DENNING et al., Contestants, Appellants, v. RICHARD BUTCHER et al., Proponents

Supreme Court of Iowa, Des Moines

May 25, 1894

Appeal from Wapello District Court.--HON. H. C. TRAVERSE, Judge.

PROCEEDING to set aside the will of Richard Butcher, deceased. From a verdict and judgment sustaining said will, contestants appeal.

Affirmed.

W. W Cory and W. H. C. Jaques for appellants.

McNett & Tisdale for appellees.

OPINION

KINNE, J.

I.

Contestants seek to set aside the will on two grounds: First, want of mental capacity in the testator; and, second, on account of undue influence of Wm. Cowley, his wife, and other members of his family. The testator was about seventy-four years old at the time of his death. He had resided at Eddyville, Iowa from 1848 up to the time of his death, in March, 1889. He was a bachelor. During most of his active life he had been a merchant, and had, by his energy and ability, accumulated an estate of seventy-five thousand dollars. He was eccentric reserved, positive, and honest. He appears always to have been somewhat negligent in the care of his person, and during much of his life greatly addicted to the use of intoxicating liquors. About 1877 he had a stroke of paralysis, which, to a certain extent, ever after affected his appearance and use of his limbs, but from which, in other respects, he seemed to have recovered. After this affliction he drank less than he had formerly done. He executed the will in question on December 29, 1887, and died March 4, 1889. From early in 1888 until his death he was, much of the time, confined to his room, as a result of disease and old age. For twenty-five years prior to his death, he had lived in the family of William Cowley, and, when ill, was always carefully cared for by them. Cowley had also for many years been his trusted agent, and managed his business, and possessed, to a remarkable degree, the deceased's confidence. All the parties to this controversy, except Cowley, are--or, in the absence of a will, would be--legal heirs of deceased. Cowley was in no way related to the deceased. The will was written by R. W. Boyd, Esq., a practicing attorney of Eddyville, who had generally been deceased's legal adviser and attorney. It appears that on the morning of the day the will was executed, deceased sent Cowley for Boyd; that Boyd sent Cowley to Butcher for information, and he returned with a memorandum and then left. This will was prepared by Boyd in accordance with the memorandum, except that, at deceased's instance, Boyd added provisions for a monument and that Cowley should act as executor without bond. After the will was drawn, Butcher read it, and requested Cowley to read it, which he did, whereupon Butcher asked him if he would accept the trust, and he said he would; and, at Butcher's request, Boyd and Epperson witnessed the execution of the will. The will gave to deceased's brother, Thompson Butcher, ten thousand dollars; to Laura Butcher, daughter of said Thompson Butcher, five thousand dollars; to Richard Butcher, son of John Butcher, deceased's brother, twenty-five hundred dollars; to Ocean Butcher, another son of John Butcher, twenty-five hundred dollars; to John Butcher, another son of deceased's brother, twenty-five hundred dollars; to John Butcher's only daughter by his second wife, twenty-five hundred dollars; to William Cowley, ten thousand dollars, and the remainder of his estate to be divided as follows: To his sister Sarah Neff, one fourth; to his brother, William Butcher, one fourth; to his brother, Thompson Butcher, one fourth; and to the heirs of his brother, John Butcher, one fourth, share and share alike. Cowley was appointed executor without bond. Issue was taken on the want of mental capacity and undue influence. The cause was tried to a jury, who, in answer to special interrogations submitted, found testator competent to make a will, and that no undue influence had been used to procure the will, and found, generally, that the will in question was the valid will of Richard Butcher. The court admitted the will to probate, and taxed the costs of the contest to contestants, from which order and judgment they appeal.

II. Appellee insists that the appeal should be dismissed for reasons set forth in his motion filed at the January term, 1893, and which was then overruled. This question must, therefore, be treated as res judicata.

III. It is not seriously contended that the evidence did not justify the verdict. The evidence, as is usual in such cases, was conflicting; but it is, nevertheless, ample to sustain the finding of the jury. Hence we consider only the legal questions raised.

IV. Appellants complain of the action of the court in excluding certain testimony. One question asked the witness Dolts was "From the facts and circumstances, as you have narrated them to the jury, what is your opinion as to whether or no he [Butcher] was of sound mind as he had been in prior years?" To this and similar questions the objection was made that no proper foundation had been laid to warrant the admission of the testimony. The objection was properly sustained. The question fixes no time as to when the opinion is called for, and the witness is asked to contrast the deceased's condition at a time not fixed nor limited with his mental condition as it had been in prior years. Again, in another question, no time is fixed as to when the witness was asked to say Butcher was not of sound mind. Furthermore, while it is shown that this witness had been acquainted with deceased for many years, and had done business with him, it does not appear what the extent and character of said transactions were, nor is it shown how frequently they occurred. The opportunity of the witness to judge as to deceased's mental condition appears to have been so slight as to have justified the ruling. It may also be said that the assignments of error which are evidently intended to reach the excluded evidence refer to other pages of the abstract. As, however, this is claimed to have been a typographical error, we have considered them. As to this and other like testimony, which was offered and excluded for the same reason, appellants insist that the rule is that a witness, not an expert, may state his opinion as to the sanity or insanity of another, having first stated to the jury the facts and circumstances upon which said opinion is founded, and that the court has no right to pass upon the question of the sufficiency of the facts to qualify the witness to give such an opinion. It is said to be the settled rule in this state that, after detailing the facts upon which the opinion is based, the court must permit the witness to give his opinion, no matter though the facts be such as to show that no proper foundation for an opinion has been laid. As supporting this claim, we are referred to In re Will of Norman, 72 Iowa 84, 33 N.W. 374; Severin v. Zack, 55 Iowa 28, 7 N.W. 404. In neither of these cases was the question of the right of the court, in such a case, to pass upon the sufficiency of the foundation laid for the admission of such evidence, raised or determined. An examination of the cases decided by this court shows that the doctrine contended for by appellants has never met with approval. The right of a nonexpert witness to give an opinion based upon facts fully disclosed to the jury has always been recognized, but it is equally clear that the court has the right to determine whether such facts have been disclosed as to entitle the witness to express an opinion. That is a preliminary question, and a power which must be possessed by the court, else such a witness, on stating a single fact of such a character that no opinion as to sanity or insanity could properly be based thereon, would be permitted to give his opinion as to the party's mental condition. True, it may be impossible to lay down a rule as to just what statement of facts would show a sufficient foundation to warrant the giving of an opinion by a nonexpert witness. That must depend upon the circumstances of each case, and must be left for the trial court to determine in the exercise of a wise legal discretion; and its ruling in that respect should not be disturbed, unless it clearly appears that it has not properly exercised the discretion with which it is vested. No such case is made here. It is said: "The court can not decide whether the opinion is of much or little weight. Its duty is merely to decide whether such knowledge is shown and such facts are stated as entitled the witness to express any opinion at all." Colee v. State, 75 Ind. 511; Turner v. Cook, 36 Ind. 129; Mull v. Carr (Ind. App.) 32 N.E. 591; Lawsons, Exp. Ev., p. 476; McLeod v. State (Tex. Cr. App.), 31 Tex.Crim. 331, 20 S.W. 749; Rog. Exp. Test., pp. 6, 156. As is said in Brown v. Com., 77 Ky. 398, 14 Bush 398: "The court must be satisfied that the witness has had an opportunity, by association and observation, to form an opinion as to the sanity of the person in reference to whom he is to speak; but, as to the extent and character of the evidence, no better rule can be established than to leave it within the discretion of the court." Hite v. Com., 14 Ky. L. Rep. 308, 20 S.W. 217. As supporting our holding, see State v. Stickley, 41 Iowa 232; Parsons v. Parsons, 66 Iowa 754, 21 N.W. 570, and 24 N.W. 564; Ashcraft v. De Armond, 44 Iowa 229; Pelamourges v. Clark, 9 Iowa 1; Blake v. Rourke, 74 Iowa 519, 38 N.W. 392. Witness Kohl was asked touching Butcher's mental condition. The question objected to did not limit the opinion of the witness to the times he had seen the testator, but covered the entire last two or three years of his life. The ruling in this instance was in harmony with the holding of this court in ...