Harrah v. Wharton (In re Wharton's Will)

• Citation: 132 Iowa 714,109 N.W. 492
• Parties: IN RE WHARTON'S WILL. HARRAH v. WHARTON ET AL.
• Decision Date: 24 October 1906
• Court: United States State Supreme Court of Iowa

132 Iowa 714

109 N.W. 492

IN RE WHARTON'S WILL.HARRAH

v.WHARTON ET AL.

Supreme Court of Iowa.

Oct. 24, 1906.

Appeal from District Court, Jasper County; Byron W. Preston, Judge.

This is a proceeding for the probate of the will of Stephen Wharton, deceased, offered for probate by A. M. Harrah, devisee, who is also named as executor, to act without bond, and contested by George Wharton, his son, and Esther Wharton, his widow, who, having been adjudged insane, is represented by a guardian. The grounds of contest were want of mental capacity, and undue influence. There was a special finding of want of mental capacity by the jury, a general verdict in favor of contestants, and a judgment entered on such verdict, denying and refusing admission of the will to probate. Proponent appeals. Affirmed.O. P. Myers and E. C. Ogg, for appellant.

E. J. Salmon, for appellee George Wharton.

E. M. S. McLaughlin, for appellee Esther Wharton.

McCLAIN, C. J.

Many errors are assigned as to the action of the trial court, and it will only be possible to discuss those which seem to this court to be of controlling importance.

1. Various objections are urged to the correctness of instructions on the issue as to undue influence, and as to the refusal of instructions on that subject, particularly an instruction withdrawing that issue from the jury on the ground that there was no evidence to support the contest, but we do not find it necessary to notice these objections, for the court submited to the jury separate special interrogatories as to the unsoundness of the mind of deceased, and as to whether, in executing the will, deceased was acting under undue influence, with the direction that, if the answer to the first interrogatory was that deceased was of unsound mind, then the interrogatory as to undue influence need not be answered, and the jury returned an affirmative answer to the first interrogatory, making no answer to the second. It is clear from this record that the general verdict of the jury was not based on the evidence as to undue influence, and it could not have been affected by the instructions on that subject. There was no prejudicial error, therefore, in submitting the issue as to undue influence nor in the giving of the instructions on that subject even if they might be found to be erroneous. In re Will of Selleck, 125 Iowa, 678, 101 N. W. 453;In re Betts' Estate, 113 Iowa, 111, 84 N. W. 975.

2. The designation by the court in its instructions of A. M. Harrah as the sole proponent, although the will proposed for probate contained provisions for the benefit of Esther Wharton, widow, and the naming of her as contestant by E. M. S. McLaughlin, her guardian, are complained of, principally, as we understand it, because the court thereby unduly emphasized the relation of Harrah as devisee, whereas he was also executor, and on that ground properly was the proponent of the will, and, also, as pointing him out to be the sole claimant under the will, although, as a matter of fact, the widow would have derived some benefit under its provisions. But these complaints seem to us to be without any substantial force. The widow is not complaining that she was named as contestant, and the court did not say whether Harrah proposed the will for probate as executor or as devisee. The will itself was before the jury, and the circumstances were fully known to them, and no prejudice could possibly have resulted, in our judgment, from the method in which the parties were designated. It is said that McLaughlin as guardian had no right to elect for his ward that she should be treated as contestant, but we see no bearing of this matter on the rights of the appellant. There is no contention that the court did not have jurisdiction to proceed, and the question whether its judgment is binding upon the widow is not one which appellant can raise.

3. Several instructions with reference to mental capacity are complained of on the general ground that they unduly emphasized the requirements as to mental capacity to make a will, and reiterated the necessity that the testator possess a mind capable of exercising judgment, reason, deliberation, etc. A reading of the instruction satisfies us that they are a correct statement of the law, and that there is nothing in them tending to mislead the jury in its application to the facts.

4. Another instruction is objected to because it allowed the jury to consider the mental condition of testator eight years after the will was executed. But nothing in the instruction specifically called attention of the jurors to any evidence as to the mental condition of testator eight years after the execution of the will. The instruction referred to the evidence, and if the evidence was competent it might be considered by the jury. As to the objections made to the evidence on which the instruction was based it is sufficient to say that the testimony of witnesses for contestants covered a connected period from a time prior to the execution of the will when testator received a severe injury down to the time of his death, and it was entirely proper to thus cover the whole period, for the evidence tended to show that, after the time the injury was received, testator exhibited symptoms of unsoundness of mind, which might be referred to the continuing result of the injury, combined with advancing age. It would not be difficult to cite many cases in which testimony as to mental condition at a period long subsequent to the execution of a will has been held competent, it appearing that the condition testified to has been continuous. See, particularly, Ashcraft v. De Armond, 44 Iowa, 229;Bever v. Spangler, 93 Iowa, 576, 61 N. W. 1072.

5. In another instruction the jurors were directed as to the weight to be given to the opinions of expert and nonexpert witnesses as to the soundness or unsoundness of testator's mind based upon the facts and circumstances detailed by them. Counsel contend that the rule of the instruction is not applicable to the testimony of the subscribing witnesses. But the instruction does not specifically refer to the testimony of the subscribing witnesses, and it appears that, as a matter of fact, they did explain at considerable length the grounds on which their opinions were based. Under these circumstances, we see no reason why their testimony should not be subjected to the same tests as those applicable to other witnesses, who give opinions as to mental soundness or unsoundness. Crandall's Appeal, 63 Conn. 365, 28 Atl. 531, 38 Am. St. Rep. 375. Of course, subscribing witnesses may give an opinion that testator was of sound mind without reciting any particular facts or circumstances, and other witnesses who were acquainted with him and in a situation to observe his conduct might do the same thing. Furlong v. Carraher, 108 Iowa, 492, 79 N. W. 277;Hull v. Hull, 117 Iowa, 738, 745, 89 N. W. 979;Lucas v. McDonald, 126 Iowa, 678, 102 N. W. 532. But there is nothing in the instruction complained of negativing the right of the jury to consider the testimony of subscribing witnesses or any other nonexpert witnesses that testator was of sound mind. The jury could not have been misled into supposing that no weight whatever should be given to the testimony of such witnesses that testator was of sound mind by the instruction that their opinions should be given weight only in so far as the facts and circumstances detailed by them in evidence gave support to and sustained such opinions. It is further urged that the instruction in question authorized the jury to give some weight to the opinions of expert witnesses in answer to hypothetical questions, although the facts hypothetically stated were not established by the evidence. But we find nothing in the instruction which contravenes the rule on this subject laid down in Stutsman v. Sharpless, 125 Iowa, 335, 101 N. W. 105. The instruction related to facts and circumstances detailed by the witnesses, and not facts and circumstances stated to them in hypothetical questions.

6. Another instruction is complained of which directed the jury that,...