Howe v. Richards

• Decision Date: 17 October 1900
• Citation: 83 N.W. 909,112 Iowa 220
• Parties: IN THE MATTER OF THE ESTATE OF CHARLES HOWE, Deceased, v. JOHN W. RICHARDS, Executor and the Legatees under the Will, Preponents and Appellants RUTH W. HOWE AND FRED B. HOWE, Contestants and Appellees,
• Court: Iowa Supreme Court

83 N.W. 909

112 Iowa 220

IN THE MATTER OF THE ESTATE OF CHARLES HOWE, Deceased,

RUTH W. HOWE AND FRED B. HOWE, Contestants and Appellees, v. JOHN W. RICHARDS, Executor and the Legatees under the Will, Preponents and Appellants

Supreme Court of Iowa, Des Moines

October 17, 1900

Appeal from Clarke District Court.--HON. W. H. TEDFORD, Judge.

THIS is a proceeding to admit to probate the last will of Charles Howe, deceased, and a codicil thereto. John W. Richards executor, and the legatees named in said will, appear as proponents, and Ruth W. Howe and Fred B. Howe, grandchildren of the deceased, appear as contestants. The ground of contest is that at the time the said will and codicil were signed by deceased, "and thereafter until his death, the said Charles Howe was of unsound mind, and incapable under the law, of making any disposition of his property." As showing the character of his unsoundness of mind, contestants alleged as follows: "That the said Charles Howe, for years before his death, by reason of delusions peculiarities, and dissipated habits, was incapable of understanding or appreciating the relations which he bore to the contestants, or the duties and rights which grew out of such relation; that by reason of the matters aforesaid, the mind of the said Charles Howe became so distorted and unsound that he was wholly unfit to form a judgment with respect to the proper disposal of his property, and was led to make the bequests shown in and by the instruments through insane delusions and unfounded prejudices, which wholly incapacitated him from forming a judgment with respect to his relations to these contestants, or any other persons, and they, therefore, respectfully show that the said instruments so offered for probate are not the last will and testament of the said Charles Howe, and ought not be received as such." Proponents answer, denying said allegation, and upon trial had, verdict and judgment were rendered in favor of contestants. Proponents appeal.

Affirmed.

Temple & Hardinger, W. B. Tallman, and James Rice for appellants.

Cummins, Hewitt & Wright and Jamison & Park for appellees.

GIVEN J. GRANGER, C. J., not sitting.

OPINION

GIVEN, J.

I.

Appellants' complaints are against certain rulings on evidence, certain instructions and the sufficiency of the evidence. A brief statement of undisputed facts and of the claims of the parties will aid in understanding the questions to be considered. On the sixth day of July, 1898, Charles Howe, for many years a resident of Osceola, Iowa, died at the age of 82 years, leaving as estate consisting of real and personal property, worth about $ 16,000. Deceased had but one child, George F. Howe, the father of these contestants. George F. Howe died prior to the death of his father. Contestants are the only surviving lineal descendants of Charles Howe, and, in the absence of a valid will, are entitled to inherit his entire estate. It is admitted that George F. Howe died a poor man, and that contestants are without property or means, and are compelled to earn a livelihood. On the fourteenth day of April, 1897, Charles Howe executed the instrument under consideration, in due form, as his last will, wherein he bequeathed and devised his entire estate as follows: To the Chicago Foundlings' Home for Little Children, located in the city of Chicago, $ 200; to the Old Ladies' Home, in Worcester, Mass., $ 300; to the trustees of the Baptist Church in Osceola, Iowa, a certain lot in Osceola; to the Presbyterian Church of Osceola, a certain other lot, and, in addition thereto, $ 3,000 in money, to be used for maintaining preaching and keeping up the ordinances of the church; to Mrs. J. W. Richards, all portraits, pictures, and photographs; to Mrs. Thomas Roman, his mahogony parlor set; to Mrs. Cordelia Knight, of Worcester, Mass., "all the rest and residue of my estate, both real and personal, except my gold watch, to have and to hold the same forever, if she survives me, if not, then to her children in equal shares; "to Samuel Bond, of Osceola, Iowa, my gold watch and chain." John W. Richards, of Osceola, was named as executor. Mrs. Roman having died, Mr. Howe issued a codicil, on the fourteenth day of April, 1897, to said will, giving the mahogony parlor set to Mrs. James Beard. Charles Howe having departed this life, said will and codicil were presented for probate on day of July, 1898.

Contestants' claim is that at the time Mr. Howe executed these instruments, and continuously thereafter until his death, he "was of unsound mind, and incapable, under the law, of making any disposition of his property." In support of this, they introduced evidence tending to show a want of affection on the part of the deceased toward his son, whose death had occurred prior to that of his father, and toward the wife of said son and these contestants, their only children. They also offer evidence as to his habits and conduct, and the opinions of a number of witnesses, including three experts, as to his mental condition. Proponents deny that deceased was of unsound mind, or incapable of executing said will and codicil; and in support thereof introduced a number of witnesses, including four experts, as to the habits and conduct of the deceased and the opinions of the witnesses as to his mental condition.

II. Appellants complain that certain hypothetical questions were permitted to be put to the expert witnesses on the ground that the questions did not present the facts which the evidence tends to establish. Counsel say: "We believe the weight of authority requires that a hypothetical question shall conform with reasonable strictness to the facts proven, or tended to be proven, by the testimony in the case on the part of the parties putting the question." We think the questions complained of are within the rule as stated, but, if not, there was no prejudice, as the court instructed that, "if it turns out that such hypothetical statement of facts is in material and important particulars incorrect, unfair, partial and untrue, a jury, in such case, should attach no weight whatever to the answer of the medical experts founded upon such hypothetical statement of facts."

Appellants say the court erred in permitting Ella Howe to testify to conversations with Mrs. Charles Howe in her lifetime. But little testimony of this character was given, and it does not appear that it was objected to.

Mrs. Lympus was asked what was the understanding of contestants' family as to whether they would be welcome at their grandfather's house, to which appellants objected, and complain that their objection was overruled. The feeling between the parties was a proper subject of inquiry, and, in view of the answer given by the witness, there was no prejudice in the ruling, even if it was incorrect.

W. S. Beard, called by proponents, was asked as to deceased being able to converse connectedly, coherently, and intelligently in 1897. Contestants objected, as calling for a conclusion, and the objection was sustained, but the witness proceeded to answer fully, and no motion was made to strike the answer; therefore the ruling was without prejudice.

Contestants were permitted to introduce two letters, shown to have been written by contestant Ruth Howe to the deceased long prior to his death, one dated August 20, 1892, and the other September 4, 1894, and to have been received by the deceased, in due course of mail, soon after their dates. The contents of these letters tend to show a friendly feeling and affection upon the part of the writer for her grandfather, and a solicitude for his...