Estate of Kirby, In re
| Decision Date | 07 February 1950 |
| Docket Number | No. 47585,47585 |
| Citation | 241 Iowa 340,41 N.W.2d 8 |
| Parties | In re KIRBY'S ESTATE. HERZ v. KIRBY et al. |
| Court | Iowa Supreme Court |
Thomas Doherty, of Dubuque, and Irving D. Long of Manchester, for appellant.
Peter W. Klauer of Dubuque, and Francis H. Becker, of Dubuque, for appellees.
This is a will contest.On March 22, 1949, there was filed in the office of the Clerk of the District Court in and for Dubuque County, Iowa, an instrument purporting to be the last will and testament of Joseph Kirby, deceased.Objections were later filed thereto by a niece of the deceased, alleging that the purported will was of no validity on the grounds that at the time executed, Joseph Kirby lacked mental capacity to make the same; also, that it was the result of undue influence exercised over the deceased by certain devisees named therein.
The case was tried to a jury and when objector(hereinafter referred to as contestant) rested, upon motion of proponents the court directed a verdict wherein the will was declared to be valid.This appeal followed.
Appellant sets forth but one error and that is the ruling of the court in directing a verdict when she rested.Appellant does not claim or argue the issue of undue influence, relying on her claim that there was sufficient evidence of mental incapacity of Joseph Kirby at the time the will was executed to require such issue to be submitted to the jury.Her brief points set forth are three in number.
First: 'When passing on the sufficiency of the evidence the court must consider the evidence in a light most favorable to the contestant.'
Second: 'The weight of the evidence and the credibility of the evidence were for the jury.'
Third:
The first brief point may be conceded.It is unnecessary to cite authorities in support thereof.The same may be said of the second point.In proper cases the weight of the evidence and of the credibility of the witnesses and their evidence is for the jury.
As to the third point relating to the weight and effect to be given to the testimony of a nonexpert witness, that where a nonexpert gave an opinion as to the mental soundness of the testator, such question calls for an examination of the testimony given by such witness.
I.Before setting forth the evidence of contestant and particularly that given by nonexpert witnesses who gave opinions that the testator was insane or of unsound mind in 1944we will set forth some of the rules and principles of law to be applied in cases of this kind--will contests.
In the inception we will begin with the statute which deals with the question as to what persons are competent to execute wills.
Under our statute it is provided that any person of full age and sound mind may dispose by will of all of his property.Sec. 633.1, Code of 1946, I.C.A.
In passing upon the sole question raised on this appeal to wit, mental incapacity of Joseph Kirby, we are to start with the fundamental principle that under ordinary circumstances a person has the absolute right to dispose of any property owned by him at his death, as he pleases.In the face of the statute it is not the business of the court to interfere with the disposition which Joseph Kirby made of his property.O'Brien v. Stoneman, 227 Iowa 389, 288 N.W. 447;Hastings v. Day, 151 Iowa 39, 130 N.W. 134, 34 L.R.A.,N.S., 1021, Ann.Cas.1913A, 214;Canaday v. Baysinger, 170 Iowa 414, 152 N.W. 562;Roorda v. Roorda, 230 Iowa 1103, 300 N.W. 294;In re Heller's Estate, 233 Iowa 1356, 11 N.W.2d 586;In re Nugen's Estate, 223 Iowa 428, 272 N.W. 638.
Where the testamentary capacity of a testator is challnged, the burden rests upon the contestants to show that the testator did not have sufficient mental capacity to know and comprehend, in a general way, the natural objects of his bounty, the nature and extent of his estate, or the distribution he wished to make of it.In re Meyer's Estate, Iowa, 37 N.W.2d 265, 271;citingIn re Estate of Sinift, 233 Iowa 800, 10 N.W.2d 550;In re Estate of Fitzgerald, 219 Iowa 988, 259 N.W. 455.See alsoIn re Hayer's Estate, 230 Iowa 880, 299 N.W. 431;In re Cocklin's Estate, 232 Iowa 266, 5 N.W.2d 577;In re Behrend's Will, 233 Iowa 812, 10 N.W.2d 651.See also cases cited 19 Iowa Digest, Wills, k52, p. 185.
Let us examine the record and determine whether the appellant met the test and whether the court erred in directing a verdict for proponent.For the rule to be applied by the trial court when the motion to direct a verdict is made on the grounds of insufficiency of the evidence, seeIn re Estate of Hayer, supra;In re Estate of Shields, 198 Iowa 686, 200 N.W. 219;In re Estate of Fitzgerald, supra;In re Estate of Sinift, supra.
II.Joseph Kirby, the testator, a widower, with no direct heirs, had lived at Farley, Iowa, and vicinity, for many years.He made a will on April 28, 1944.We find no mention of his then age in the record.He died on March 19, 1949.He left as his heirs a sister, Mary Kirby, and nine nieces, six grand-nieces, and a sister-in-law.A niece, Margaret Ellen Herz, contestant, is married and for years has lived in Chicago.His sister, Mary Kirby, lived with testator and kept house for him for many years.
His will gave $100.00 for masses; $500.00 to one niece, Mary Monsener, of Freeport, Illinois; $500.00 for a sister-in-law, Mrs. J. V. Kirby, and the remainder to three nieces, Genevieve Kirby, Eva Kirby, and Florence Kirby.The extent of the property in the estate is not shown by the record.Two nonrelatives were nominated executors.It was stipulated that the formal execution of the will was admitted.
Bearing in mind the right of Joseph Kirby by make a will disposing of his property and the presumption that he had capacity to do so and the requirement of the statute as to the burden of proof cast upon contestant, we will examine the record as to the sufficiency of the evidence to establish appellant's claim that on April 28, 1944, Joseph Kirby lacked sufficient mental capacity to make a legal will.
Appellant had five witnesses who testified.None of them had resided in the vicinity of Farley for years.She, with the other two witnesses, A. J. Herz, her husband, and a close personal friend, Ethel Monaca, live in Chicago, a distance of approximately 200 miles from Farley.The record shows that for a number of years they came to Farley at rather infrequent intervals and visited a few days with testator and his sister.The other two witnesses were nieces, Sarah Neswick and Frances Gantz, both of whom live in Sioux City, Iowa, a distance of about 250 miles from Farley.There was no medical testimony offered.
Mrs. Herz stated that she visited testator at Farley, Iowa once or twice a year, usually at Easter and Christmas, while on her way to Sioux City; that she was there in April, 1944, and that she observed that testator slept with his clothes on; that he was not clean; did not cut his hair; would not come to a meal and at times left before it was finished; that on one occasion she saw him sitting under a tree when it was raining and she had to get him to come in; that he might take his pants off when he went to bed and that he would come out to the table without putting them on; that he roamed around the streets many times and he would have to be found; that he walked down the middle of the street and traffic would have to stop for him; that he would not hold a conversation; that she had not had a good conversation with him since 1938; that he did not know her when she came to visit; that in 1941, 1942, and 1943, he would get up, walk around asking who the visitors were and when told would soon ask again; that he would sit with his pipe in his mouth and hat on and would not talk to witness.Basing her opinion solely on observation, she stated it was her opinion Joseph Kirby was insane in April, 1944.
A. J. Herz, husband of contestant, testified that he visited the home of Joseph Kirby, in April, 1944; that testator did not come out to the car to greet him and stayed in the house; that when called to eat he would eat the food on the table whether good or bad, even if it had been sitting there a day or two; that he would not talk to the witness very much.
Ethel Monaca testified that during the past fifteen years she often made trips to Sioux City with contestant; that they always stopped to see testator and his sister, Mary Kirby; that they stopped there to see them Friday afternoon, April 7, 1944; that testator did not know who they were; that he held no conversation but stared into space; that he would tell his sister to chase the pigeons off the house but there weren't any there; that he ate old food on the table which must have been there three or four days; that in 1943 when they went through, Mrs. Monaca saw him come to the table without putting on his pants and he just had on a shirt and underwear.
Sarah Neswick testified that she visited testator in his home in Farley, Epworth and Bankston; that she visited him in Farley in 1944; that on that visit his sister, Mary Kirby, would call him to eat and he wouldn't wash his face or hands; that when he first moved to Farley she visited him and found him in the basement trying to shovel out the water as it was raining hard and the water was about his waist; that when they got to Farley, Aunt Mary Kirby would tell him to come that they had company and he would say, 'I don't want to see any company'; that he didn't know the witness; that he would say there were birds out on the street or out on the porch but witness looked and saw none; that she returned to the testator's home from Chicago to find Aunt Mary Kirby trying to get testator to change...
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