Graham v. Courtright

• Decision Date: 14 March 1917
• Docket Number: 30275
• Citation: 161 N.W. 774,180 Iowa 394
• Parties: WILLIAM J. GRAHAM et al., Appellees, v. O. B. COURTRIGHT, Appellant
• Court: Iowa Supreme Court

161 N.W. 774

180 Iowa 394

WILLIAM J. GRAHAM et al., Appellees, v. O. B. COURTRIGHT, Appellant

No. 30275

Supreme Court of Iowa, Des Moines

March 14, 1917

REHEARING DENIED FRIDAY, JUNE 22, 1917.

Appeal from Black Hawk District Court.--FRANKLIN C. PLATT, Judge.

ACTION to set aside the third paragraph of the will of Bessie Graham, as having been inserted through the alleged undue influence of the beneficiary therein, resulted in the verdict and judgment as prayed. The defendant appeals.

Reversed.

J. W Arbuckle, for appellant.

Mears & Lovejoy, for appellees.

LADD J. GAYNOR, C. J., WEAVER, EVANS, PRESTON and SALINGER, JJ., concur.

OPINION

LADD, J.

Bessie Graham executed her will March 5th, and died March 17, 1913. She had never married, and was 74 years of age. She had been in good health until shortly before death, though she had become so fleshy tat it was difficult for her to get about. The will was admitted to probate April 25, 1913, and this action to set aside the third clause thereof was begun shortly afterwards. The will (1) directed the payment of debts, and (2) made a bequest of $ 5,000 to William J. Graham, to be paid in 15 months. The third clause read:

"To the long-time and faithful friend of my beloved father and my friend, the Hon. O. B. Courtright, I hereby in gratitude give and bequeath the sum of $ 5,000 to be paid to him by the executor hereof within 15 months from and after the probate hereof."

The residue of the estate, real and personal, was left to Theodore M. Graham, who was named as executor, without bond. The bequests were declared liens on the real estate. Theodore was a half brother, 10 or 12 years younger than decedent. Whether William was brother or half brother does not appear. Courtright drew the will, and the clause quoted is assailed only as having been inserted in consequence of undue influence exercised by him over testatrix. The jury, in so finding, accompanied their verdict with a statement denominating him "innocent of any charge of attempted fraud, but admit that he is the victim of a most unfortunate legal hypothesis which deprives him of an otherwise legitimate legacy."

Errors in ruling on the admissibility of evidence, in overruling motion to direct a verdict, and in instructions given, are assigned, and, as these are based on the evidence, the record may as well be stated at the outset. The acquaintance of Courtright and testatrix began when living with their parents on farms not far apart, in Grundy County. She continued there until about 1885. He began the practice of law in Parkersburg in 1878. Upon the death of her father, in 1888, she became administratrix of his estate, and employed Courtright as attorney to aid in its settlement. Thereafter, she lived at Cedar Falls until the death of her mother, when she returned for a short time to Parkersburg. Thereafter, she made her home for a time with the family of William at Cedar Falls, and later lived at the home of Gallagher in that place about 15 months. From October, 1912, until her death, she lived at the residence of Theodore Graham, at Waterloo. She had paid $ 1,500 toward its purchase, by Theodore, in order to have a home with him, and had paid him $ 300 besides, and, in addition thereto, $ 20 per month for board. She owned a farm of 160 acres, worth $ 24,000, and had $ 600 in money at the time of her death. Courtright had become a member of the firm of Courtright & Arbuckle at Waterloo in 1894, and had been in the active practice of his profession until 1911, when he retired, but occasionally attended to legal business thereafter. During all the years, they had met occasionally, she had visited at his home up to the time of his first wife's death, and after she came to Waterloo, he had called on her frequently with his wife, as well as on Graham and wife, the latter being his cousin. Their relations had always been cordial. They were friends. At the trial, Theodore testified that "she was a woman that had been accustomed to carry on her own business matters all her life, and was a very cautious, careful woman. She was in the habit of reading over or having read over documents before she signed them;" that, aside from being sick, he "did not know whether her mind was as good as it ever had been or not;" that she had said that, when she got sick, she wished the defendant to draw her will.

Shortly before noon on the day in question, Mrs. Graham telephoned Courtright that "Bessie is sick, and would like to see you." She had previously told him that testatrix would like to do something about her will. He called after lunch. Theodore testified that Bessie was sick in bed when he arrived; that he went to the sick room with him.

"I told him that it had been my sister's request that, whenever the time came when she wanted to dispose of her property, I was to assist her. He said he thought it better for me not to, as I expected to be a beneficiary, so that, if the will was ever questioned, I could go on the stand and deny I knew what was in the will. As I went out, he put his hands on my shoulder and walked to the door with me and closed the door tight. He and she were left in the room; nobody else. After probably 10 or 15 minutes, he called me in, and says: 'Bessie wishes to make me a little present;' and I asked what was the nature of the present,--'as a retainer to act for the estate?' He says, 'No, just a little present.' There was no reply from her, and I replied, 'Why,' I says, 'It is hers, she can do as she pleases,' and I walked out. In a few minutes, he came out with his notes and wrote out the will, and after he got it wrote out, he told my wife to call in some witnesses, and they were called in. He went into the bedroom and I don't know what took place. The witnesses came. I did not read the will and was not in the bedroom while the witnesses were there. He came out with the will, stuck it in his pocket and walked out. When she came to make her home with me, she could not get out doors. She never went out of the room until the day she died. It was very difficult for her to walk about."

His wife, Effie Graham, corroborated her husband somewhat, by testifying:

"I heard him say, 'Theodore, you better be out, because if you were called on you can get up and say that you knew nothing that is in the will.' My husband came out and went into the kitchen. The door was shut up tight. Mr. Courtright was in the room alone with Bessie about 15 minutes, while he made the notes of the will. He then came out, and says, 'Theodore, Bessie wants to make me a little remembrance.' Mr. Graham says, 'What is this, in the nature of a retainer?' He says, 'No, just a little present.' I never heard the will read and did not read it."

On the same subject, the defendant testified as follows:

"I went to the home of Theodore Graham in response to this call. I met Theodore Graham and his wife and the decedent, Bessie Graham. I found the decedent in a bedroom on the first floor of the house. Theodore went into the room with me. I had some conversation with Theodore there in the room. I don't remember just how it started, but do remember of telling him that he had better not be present during the time that I was ascertaining what the provisions of the will were to be, and he replied that she had said when she came to make her will she wanted him present, and I said to him, 'Well, that is all right so far as she is concerned, but for your own interests I think it would be better for you not to be present. If any difficulty should arise hereafter, which is liable to, you would be in a better position if you could go onto the stand and testify that you knew absolutely nothing about what was in the will,' and upon that he went out of the room. Whether I put my hand on his shoulder or not, I don't remember. The bed lay lengthwise of the room. The door came in pretty near opposite the foot of the bed, and there was a stove and a chair between the door and the head of the bed, and I sat in the chair or stood there by the chair probably not over a foot or two from the bed, and not more than a foot or two from the door. After he went out of the door, I am quite sure I closed it."

The witness then explained the reason for the suggestion that Theodore be not present, relating a conversation concerning difficulty between testatrix and W. J. Graham, which conversation Theodore and his wife denied having had, and proceeded:

"That is substantially the conversation we had at that time, and I knew that fact when he came into the room, and thought that, if he was to be given the bulk of the property, it would be better for him--and I was interested in him, his wife being a relative--that it would be better for him not to know the contents of the will, and said so to him, and said if there was any trouble it would be better for him to be able to go on the stand and swear that he didn't know anything about what was in the will. After being in the room some 5 or 10 minutes, I stepped to the door and called Theodore and told him to come. I think the door was closed, but I am not positive about that. He came into the room, and I said to him, 'We are up against it.' He says, 'What is the matter?' I says, 'Bessie wants to leave me a legacy or bequest, and I have refused to draw her will, and she says that she won't draw a will unless I draw it.' Theodore hesitated a moment, and then says, 'Well, I suppose what she gives you she gives by way of retainer to look after my interests, if there is any trouble.' I says, 'No, sir, what she proposes to do is to give me an out and out bequest.' There was nothing said about the amount of it in any shape. He says, 'Well, go ahead,' and turned around and went out, and I closed the door and did go ahead."

The...