Grahlman's Will, In re, 49055

• Decision Date: 05 March 1957
• Docket Number: No. 49055,49055
• Citation: 248 Iowa 535,81 N.W.2d 673
• Parties: In the Matter of the Probate of the Will of Frederick GRAHLMAN, Deceased. Arthur GRAHLMAN; Emil Grahlman; Edward Grahlman; Ernest Grahlman; Frederick Grahlman, Jr.; Ida Reisner; Ella Reay and Opal O'Connell, Appellants, v. William GRAHLMAN and C. E. Leach, as Executor Named under the Last Will and Testament of Frederick Grahlman, Deceased, Appellees.
• Court: Iowa Supreme Court

Page 673

81 N.W.2d 673

248 Iowa 535

In the Matter of the Probate of the Will of Frederick GRAHLMAN, Deceased.

Arthur GRAHLMAN; Emil Grahlman; Edward Grahlman; Ernest Grahlman; Frederick Grahlman, Jr.; Ida Reisner; Ella Reay and Opal O'Connell, Appellants, v. William GRAHLMAN and C. E. Leach, as Executor Named under the Last Will and Testament of Frederick Grahlman, Deceased, Appellees.

No. 49055.

Supreme Court of Iowa.

March 5, 1957.

Sweet, Sager & Engelbrecht, Waverly, and R. J. Sullivan, New Hampton, for appellants.

Donohue & Wilkins, New Hampton, for appellees.

PETERSON, Justice.

Frederick Grahlman was born in Germany December 23, 1862. He came, as a young man, to the United States, was married, and for his life's occupation became a farmer. He purchased his first tract of land consisting of 80 acres in 1888. In 1902 he purchased an adjoining 160 acres, and in 1914 another 40 acres, thereby accumulating a total of 280 acres, of which he was the owner at his death. He and his wife reared six sons and four daughters. During the years from 1888 to 1922 he personally operated his farm. In July 1922 he purchased a small home in Fredericksburg, about six miles from the farm, and moved to town. He lived in this home thirty-two years. On December 2, 1954, he had a stroke and was removed to a hospital at West Union. He was confined in the hospital until he died on May 2, 1955. His wife died in 1937. After that his son Edward lived with him for about 5 years; another old gentleman lived in the house for 2 years; otherwise he lived alone. Various children came from time to time to clean up the house and help him in connection with the maintenance of the home. He drove a car until a year and a half before his death. September 12, 1946, he went to the office of an attorney at New Hampton and executed a will.

In his will he provided first for the payment of his just debts. He devised to his son William 120 acres of his farm. He said in the will this devise was in appreciation of the kindness of William and his wife to him during his lifetime. In connection with this specific devise he provided that if there was a mortgage against the farm at his death it should be paid by the executor from other property in the estate. There was a mortgage of $2,500. He then devised and bequeathed all the rest, residue and remainder of his property, share and share alike, to his 10 children, naming them, including William. He appointed C. E. Leach, his banker, as executor of the estate with power to sell real or personal property to pay debts, mortgage, and any other obligations and divide the proceeds among the devisees under the residuary clause. The value of the estate, according to inventory and stipulation, was $23,895.70. Of this amount the value of the farm bequeathed to William was estimated at $12,000. The will was witnessed by Evelyn B. Wilkins and E. P. Donohue.

At the same time the will was prepared he entered into a lease with William, for rental of his farm, for the year starting March 1, 1947. The evidence is not too definite, but there seems to be general acceptance of the fact that William was with his father at the lawyer's office on the day the lease and will were executed.

The eight living children, outside of William, contested the will on the grounds of mental incapacity, fraud and undue influence. After testator executed the will, his daughter, Mary Harnisch, departed this life leaving two children. Proponents established the due execution of the will by testimony of subscribing witness, Evelyn B. Wilkins. The will was received in evidence. Contestants offered the evidence of two sons-in-law, one nephew, two tenants and their wives, four friends of decedent, and three doctors. After contestants rested, proponents filed motion for directed verdict which was sustained by the trial court. Contestants appealed.

I. In many cases, and especially in recent decisions, we have established a definite test concerning testamentary capacity. The testator must: (1) understand the nature of the instrument he is executing; (2) know and understand the nature and extent of his property; (3) remember the natural objects of his bounty; (4) know the disposition he desires to make. We have approved this general test for many years, but recently it was clearly stated in: In re Roger's Estate, 242 Iowa 627, 630, 47 N.W.2d 818. We have reaffirmed the test In re Estate of Groen, 245 Iowa 634, 638, 62 N.W.2d 143; In re Moeller's Estate, Iowa, 73 N.W.2d 15, 19; Gillette v. Cable, Iowa, 79 N.W.2d 195.

II. A resume of the evidence, pertaining to mental condition of testator and any evidence of fraud or undue influence, will be of assistance in deciding the questions involved. We will note the rulings of the court, but will consider their legal effect later.

Elmer O'Connell testified he was a son-in-law of decedent and had known him since 1926. Mrs. Grahlman died in 1937 and from the time of her death until 1942, his son Edward lived in the home with the father. From 1950 to 1952 a man by the name of Will Moeller occupied the home with decedent. Otherwise, decedent lived alone, except for visits of various children. He stated decedent talked in 'a foolish way'. On motion this statement was stricken by the trial court as a conclusion. He heard decedent say 'that he wanted his children all to have the same'. This was stricken by the trial court for failure to fix the time when the statement was made. Decedent continued to drive his car until approximately a year and a half before his death. During the summer months up until the year 1949 he would drive his car to the farm. After that he only drove it around town. In 1951 decedent asked O'Connell to assist him in looking after his business, and executed power of attorney for such purpose. In 1953 decedent executed a note and gave a mortgage on 120 acres of his farm in the amount of $2,500 and O'Connell assisted him in this business transaction. The money from rentals and proceeds of the loan were paid to decedent and deposited in his bank account. He related the fact that in December 1946 the children, including William, filed a petition against decedent for appointment of a guardian on the basis of his age and general inability to take care of his affairs. Shortly after filing the case William withdrew as a party plaintiff. Decedent retained counsel to contest the guardianship proceeding and answer was filed. The case was never tried. On March 19, 1948, it was dismissed without prejudice. This witness was asked as to whether he had an opinion as to the soundness of mind of decedent in September, 1946. He said he had. When he was asked as to what the opinion was, objection was made. The court sustained the objection. William the son was a tenant on decedent's farm on two occasions. Starting in 1936 for 7 years; starting again in 1947 for 5 years.

Emil Schmudlach lived at Nashua. He was 55 years old and a nephew of decedent. His testimony was very brief. He stopped to see his uncle occasionally and in 1947 decedent said his legs bothered him, but after he got going it wasn't so bad. Grahlman was a jolly sociable old gentleman and enjoyed visiting with people. He would see him on an average of once or twice a year for about an hour or an hour and a half. They talked about old times and old friends and he carried on the conversation the same as usual. When he saw him they had nice visits. No opinion was requested from this witness as to soundness of mind.

Albert Thein was a tenant on the Grahlman farm from March 1, 1946 to March 1, 1947, when William moved on the farm. During the summer of 1946, decedent came on the farm a lot of times. He walked kind of crippled. This witness started to testify about some repairs Grahlman had promised, but failed to make. The question was objected to on the basis of Section 622.4, and the court sustained the objection. The evidence was then proffered in chambers. The witness in later testimony covered the subject of repairs in detail. He related the actions of decedent when they were dividing the property at the close of his tenancy. 'He just jabbered to someone, talked to somebody else, wasn't paying any attention to what was divided'. This was stricken by the court as a conclusion of the witness and not a part of any conversation. He said decedent 'acted like he was kind of silly * * * and acted childish * * * monkeying around, jabbering to himself', all of which was stricken as a conclusion and opinion. Grahlman brought 500 little chicks to the farm, all of which were roosters, without telling them about it in advance. This witness was asked as to whether or not he had an opinion as to testator's mental condition on September 12, 1946. Before objection could be made he answered: 'he was unsound'. On motion this was stricken by the court as not responsive and a conclusion.

Maynard Thein was also a tenant during the same year and he testified about the lease which was on a 50-50 basis. He stated: 'He never dressed very good; always old clothes he had on'. He was the only witness who testified decedent was 'drunk most of the time pretty well'. 'He usually repeated over and over all the time and talked childish * * * well he was childish and acted childish * * * his talk was always something silly'. On motion this was stricken as a conclusion. He had an opinion as to testator's mental condition. The court sustained objection to the question: 'What is that opinion'. Contestants proffered testimony that his answer would have been: 'That in his opinion on September 12, 1946 Fred Grahlman was of unsound mind.'

Eva Thein was the wife of Maynard, the tenant. Her testimony was very brief. She said she did not pay much attention to Fred Grahlman when he came on the place, but did state that: 'He acted more like a kid than he did a man'. On motion this was stricken. She repeated the chick incident, but was not asked as to her opinion.

Alma Thein,...