Fethergill v. Fethergill

• Decision Date: 21 November 1905
• Citation: 105 N.W. 377,129 Iowa 93
• Parties: FETHERGILL et al. v. FETHERGILL et al.
• Court: Iowa Supreme Court

129 Iowa 93

105 N.W. 377

FETHERGILL et al.

v.FETHERGILL et al.^*

Supreme Court of Iowa.

Nov. 21, 1905.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

This is an action brought to set aside the will of John Fethergill, deceased, on the ground of mental incapacity and undue influence. The defendants are the executor and some of the beneficiaries under the will. The case was tried to a jury, resulting in a verdict for the plaintiffs, and defendants Otto Fethergill, Francis and Septimus Fethergill, and Ellen Harris, appeal. Reversed.Sherman De Wolf and Boies & Boies, for appellants.

Dale & Harvison and Hugh Brennan, for appellees.

DEEMER, J.

The deceased, John Fethergill, on the 8th day of September, 1897, made and executed what purported to be his last will and testament, in which he devised his property to a stepson, Henry A. Perrin, his brothers, Thomas, Otto, Francis, and Septimus Fethergill, and his sister, Ellen Harris. He also nominated Otto Fethergill as the executor of his will. He had prior to that executed another will in which he devised his property to his wife (then living); Robert (now dead, and the father of the plaintiffs), a brother; Henry A. Perrin, the stepson; to his brothers and sisters above named; and to the children of a deceased sister, Frances Duckett. This will was executed in July of the year 1889. After its execution, and before the making of the second will, his wife and his brother, Robert, died. The last will was executed while testator was in a hospital in the city of Des Moines, suffering from an attack of what was pronounced “malarial fever.” On the day of its execution testator was very weak physically, and the jury might have found that on the previous day his mind was wandering, and that he was then incapable of making a will. But the testator apparently recovered from this sickness, and about three weeks before his fatal illness went to Grundy county, where he died on the last day of October in the year 1901. At that time he remembered the execution of the will while at the hospital, and asked his brother Otto, who had taken it from Des Moines, to see it. It was given him, and, after looking it over, he handed it back to his brother, Otto, remarking that it was all right, and it remained in Otto's possession until after John's death, when he, Otto, filed it with the clerk of the Polk county court. This last will was duly admitted to probate, and the executor named therein was appointed and qualified. This is an independent action at law to set aside the will, upon the grounds above stated; it being charged that defendant Otto Fethergill is the person who unduly influenced the testator into the making of the instrument. The case was submitted to a jury on both issues; and defendants now contend, as they did in the district court, that there was not sufficient evidence of either undue influence or of mental incapacity to take the case to a jury. Again it is contended that the trial court was in error in submitting both issues to the jury, in the event we find either was unsupported by the testimony. Further complaint is made of some rulings on evidence, and of an instruction given by the trial court.

1. The only evidence of testator's unsoundness of mind at the time the will was executed, is that he was a drinking man, and was sometimes intoxicated; that he was suffering from malaria when taken to the hospital; that he had a low fever when first taken to that institution, which was about a week before the will was executed; that his mind wandered the day before the will was signed, and that he was very weak physically from the time he was taken to the hospital, until the will was drawn. There is no claim that testator was demented, or that he had any general mental breakdown. After leaving the hospital, he attended to his business as usual, and he lived more than four years after the will was executed. This further showing was made as to mental incapacity. A witness who rented John Fethergill a house went to the hospital every day or two to see him, and he testified as follows: “While John Fethergill was at the hospital, I would go in to visit him, go to the bedside, and take him by the hand, and a portion of the time he would recognize me, and at other times he didn't. He would not have anything to say. I would ask him how he felt. He would make some kind of a reply, ‘Fairly well,’ or ‘A little better,’ or something like that. I would not stay only a short time, probably 10 or 15 or 20 minutes. I didn't urge him to talk. I thought he was too sick to be talked to. I was at the hospital the same day or the next day after the will was executed, and he was a sick man yet in my estimation. I simply shook hands with him, and probably he would turn his head and doze off and go to sleep again. He didn't seem to want to say anything. I don't know whether his mind was wandering or not. Physically, he was very weak. I think he could raise his hand. He was bleached out, very pale, and was considerably emaciated. He was at the hospital two or three weeks. From my observation of John Fethergill, taking the facts I have testified to, I would say that about the 6th day of September, 1897, I wouldn't have considered him of sound mind.” Cross-examination: “I visited John Fethergill often, sometimes before noon and sometimes after noon. Was there every day or two. I simply went in and spoke to him, as a rule he would speak back, and then he would lie over as if tired and not say much. He never talked as if he was out of his head when I was present. He didn't talk in any way to amount to anything. He was very feeble and weak. My opinion that he was of unsound mind is based on the fact that he was very weak physically.” On redirect examination this witness said: “I transacted business for John Fethergill for a number of years. I turned over some money to Otto there that I had collected. I collected some money for John while he was at the hospital, and turned it over to Otto. I don't remember the amount. I didn't do any business with John while he was at the hospital, and didn't attempt to do any. I didn't think he was competent to do business, and that is why I didn't attempt to do business with him.”

This is all the testimony bearing upon the issue of mental unsoundness, and it is manifest that it was not sufficient to take the case to a jury, especially in view of the unequivocal testimony of many...