Hertrich v. Hertrich

• Decision Date: 14 October 1901
• Citation: 87 N.W. 689,114 Iowa 643
• Parties: HERTRICH ET AL. v. HERTRICH ET AL.
• Court: Iowa Supreme Court

114 Iowa 643

87 N.W. 689

HERTRICH ET AL.

v.HERTRICH ET AL.

Supreme Court of Iowa.

Oct. 14, 1901.

Appeal from district court, Clayton county; L. E. Fellows, Judge.

Action to set aside and annul the last will of George Hertrich, deceased. There was a trial to a jury, and a verdict and judgment sustaining the will. The plaintiffs appeal. Affirmed.J. E. Corlett and V. T. Price, for appellants.

D. D. Murphy and Samuel W. Packard, for appellees.

SHERWIN, J.

The testator, George Hertrich, left a will dated April 10, 1894, which was duly probated, and his estate administered upon, before the commencement of this action, which is to set said will aside, and to probate one executed in 1887, on the ground that George Hertrich was of unsound mind when he executed the last will, and that it was obtained through the undue influence of two of the legatees therein named, Sophia and Frank Hertrich. The appellants offered to prove that before the execution of the 1894 will Frank Hertrich had asked a particular friend and confidential adviser of his father not to advise against the execution of a new will if the deceased consulted him on the subject. There was no error in rejecting this testimony, for the reason that there are other legatees under the will besides Frank and Sophia Hertrich, and, even if a conspiracy were proven between these two to procure a will by the exercise of fraud or undue influence, the admissions of either one could not be received, because their interests are separate and distinct from the interests of the other legatees, and the entire will must stand or fall together. In re Ames, 51 Iowa, 596, 2 N. W. 408; 1 Underhill, Wills (1900) § 163; Page, Wills (1901) § 424. And, on the theory of a conspiracy between Frank and Sophia Hertrich, the testimony was not competent as to her, because no preliminary evidence of such conspiracy had been offered.

2. Several nonexpert witnesses testified as to the mental and physical condition of the testator before and after the execution of the will of 1894. Some of the questions asked them only elicited answers showing his physical condition, and in one or two instances they were to the effect that the witnesses noticed no change or difference in the testator's actions or appearance. These answers were all of fact, and not opinions, as held in Severin v. Zack, 55 Iowa, 30, 7 N. W. 404, and Kostelecky v. Scherhart, 99 Iowa, 120, 68 N. W. 591. The witness H. Thorson gave a somewhat extended history of his acquaintance, dealings, and conversations with the deceased, both before and after he was stricken with the sickness which it is claimed produced mental aberration. He was then asked for his opinion as to his mental condition, based upon what he had testified to. The only objectionable feature of the question, as we view it, is the request that he base his opinion in part upon his acquaintance with the deceased. But the term “acquaintance” is a general one, and an acquaintance is only derived from a series of transactions or conversations. Taking the question and the answer together, it is very clear that the answer of the witness was based solely upon the detailed transactions and conversations with Mr. Hertrich covering a long term of years. Furthermore, the jury must have understood that his acquaintance with the deceased was made up of the various incidents, transactions, and conversations he had given in more or less detail, and hence knew what he based his opinion upon. What we here say applies as well to the testimony of two or three other witnesses who were used as non-experts. We reach the conclusion that there was no error in the admission of this testimony.

The witness Preston was a subscribing witness to the will, and his opinion as to the mental capacity of the maker thereof at the time was competent without any qualifications.

The contestants sought to prove communications made by the deceased during his lifetime to his wife, ...