Iahn v. MacMurtry (In re Jahn's Will)
| Decision Date | 17 October 1922 |
| Docket Number | No. 34198.,34198. |
| Citation | 189 N.W. 974,195 Iowa 74 |
| Parties | IN RE JAHN'S WILL. IAHN v. MACMURTRY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Crawford County; E. G. Albert, Judge.
Appeal from a judgment denying a will to probate. The facts are stated in the opinion. Affirmed.Sims & Kuehnle, of Denison, for appellant.
L. H. Salinger, of Carroll, and Conner & Powers, of Denison, for appellee.
This is a contest over the admission to probate of the last will and testament of Claus Jahn. The will was offered for probate by Henry N. Jahn, a son of the testator, who was named as executor in the will. Objections to the admission of the will to probate were filed by Emelie Jahn MacMurtry, the only living daughter of the testator. The objections filed allege testamentary incapacity and undue influence alleged to have been practiced upon the testator by Henry N. and William L. Jahn, sons and principal beneficiaries of the will. Both issues were submitted to the jury and found in favor of the contestant. The proponent Henry N. Jahn appeals. The insufficiency of the evidence to justify the submission of the issues to the jury and certain alleged errors in the court's charge constitute the propositions relied upon by appellant for reversal.
The will was executed December 12, 1914, and, after giving $500 to the contestant, and some city lots to Henry N. Jahn, the residue of the estate is bequeathed, share and share alike, to him and his brother. The testator was 80 years of age at the time the will was executed. Claus Jahn came to the United States from Germany, where he was born, when a young man, and, after living in different places in Iowa, settled on a farm in Crawford county in 1869, where he resided until 1894, when he moved to Manilla, Iowa. He was married before going to Crawford county, but his wife died about 1890. His family consisted of two sons, the daughter named above, and an older daughter Anna, who died June 14, 1913, at his home in Manilla.
Mr. Jahn appears to have been prosperous, as he acquired 400 acres of land and owned a residence in Manilla. The record does not show what, if any, other property was owned by him. After the death of his wife, Will Jahn and contestant operated the home farm, each keeping and paying one-third of the profits earned to the father. Henry and Anna lived on, and operated, another farm owned by testator about a mile and a half from the home place, under a like arrangement with the father. After the removal of the family to Manilla, the brothers engaged in the stock and grain business, the sisters joining under an arrangement to share profits equally with the brothers. Will and Henry married a few years later, when the business arrangement between them and their sisters was dissolved. Contestant, except during short intervals when absent on a vacation or for the health of herself and sister, resided with her father until November 23, 1914.
The following dates and events are given much significance by counsel in argument, and we set them out at this time for convenience. Contestant and her sister Anna left Manilla June 5, 1912, going to Colorado and California, ostensibly for their health, returning October 25th following. They again left Manilla December 25, 1912, returning to Crawford county, but going to Denison February 6th or 7th, 1913, where they remained at a residence where they secured rooms until March 29, 1913, when they returned to their father's home at Manilla. As stated, Anna died June 14, 1913. On November 23 or 24, 1914, contestant was married to a former pastor, by the name of A. J. MacMurtry. On December 21, 1912, testator conveyed 160 acres of land to each of his sons.
[1] The evidence on the issue of the testator's testamentary capacity on behalf of the contestant, briefly summarized was, in substance, as follows: Testator was enfeebled with age; was afflicted with senile dementia; frequently had dizzy or fainting spells during which he became unconscious for intervals of from a few minutes to, on one occasion, more than an hour; became untidy and forgetful; he would frequently fall over backwards in the yard; upon one occasion he became unconscious at the dinner table; he would go to a cave on the premises in the night, where, on one occasion, he was sought and found by contestant in an unconscious condition; that she called her brother and a doctor to assist her to care for him; that he would let the fire go out in his room until it became cold, or would not adjust the drafts so as to prevent the room from becoming overheated; that he so far lost control of his urine and bowels that it was necessary to place rubber sheeting upon his bed; that he frequently went to bed with all his clothes on, including his shoes; that he would urinate in the daytime in the dooryard and, upon one occasion, urinated in the presence of his niece, who was a young lady; that in the summer time he would put on his overcoat, overshoes, overalls, and winter cap to go downtown; that several times when he met a neighbor, whom he knew, and whose husband he knew to be dead, he would inquire of her about her husband; that he asked neighbors who had never been in Germany if they remembered his old friends in that country and would talk to them in German, although he knew they could not understand him, notwithstanding he could speak English; he would repeatedly drive the chickens into the chicken house in the afternoon and shut them up; when playing cards he would forget the trump; he would get up in the night and strike matches and wander about his room; frequently went to the cave, and would bundle all his clothing up, put it in a sack and set it at the foot of his bed at night, and, in the morning, would return it to its proper place. The foregoing and other incidents of lesser importance constitute the direct evidence on behalf of contestant bearing upon the issue of the alleged testamentary incapacity of testator. Most of the above facts were testified to by contestant. She was, however, corroborated by other witnesses as to several of them and in other material respects.
Many witnesses were called by proponent who testified that they had known the testator for many years and had never observed him manifest any symptoms of mental unsoundness or infirmity, except such as are commonly incident to old age. Direct testimony as to the ability of testator to transact business is confined almost entirely to the leasing of his farms and small transactions, such as the purchase of household necessities and going to the post office for the mail. A banker, with whom testator had done business for many years, testified that he prepared leases for his farms, and transacted other business with him, and that he never noticed that he was forgetful or incapacitated to do business, and gave it as his opinion that he was of sound mind. Other witnesses testified to the same effect. Medical experts, testifying in answer to hypothetical questions also expressed the opinion that he was of unsound mind. Other experts called by proponent gave testimony to the contrary.
There is no direct evidence that the execution of the will was the result of undue influence practiced upon the testator by his sons. The contestant, however, relies upon numerous incidents, some of which are more or less remote, to sustain this issue. The Jahn family, except the father, were members of the Presbyterian Church at Manilla. A. J. MacMurtry, at one time pastor of this church, left Manilla in 1905 and later became a lecturer. There appears to have been occasional correspondence between MacMurtry and different members of the Jahn family.
While contestant and her sister Anna were in Los Angeles on their first trip in 1912, they learned that the latter had a cancer on her breast. Contestant wrote to MacMurtry, who was living at Oakland, Cal., informing him of the serious character of Anna's illness, and asking for advice. MacMurtry answered the letter saying that he would soon be in Los Angeles on business and did shortly thereafter visit the sisters at that place. He advised them to consult a physician whom he named at Omaha. An arrangement was then, or later, made, as the result of which the sisters met MacMurtry at San Francisco and came with him to Omaha, where the doctor was consulted and an operation performed upon Anna. On the second trip West, in December, 1912, the sisters were accompanied by MacMurtry from Omaha, who went to Canon City, and they to Pueblo to visit some friends. Unable to locate their friends, they also went to Canon City, where they remained for some weeks. During all, or part, of the time they were in Canon City, they and MacMurtry lived in a rooming house, ate their meals together, and shared the expense of the meals equally. They, however, occupied separate apartments. When the sisters returned to Crawford county, going to Denison in February, 1913, they were accompanied by MacMurtry.
Some time prior to August 28, 1913, MacMurtry commenced suit against his wife at Oakland, Cal., for a divorce. An interlocutory decree, upon the cross-petition of the wife, was entered in the divorce action on the above date and a final decree November 23, 1914, the day before contestant and MacMurtry were married in Omaha. The sisters loaned MacMurtry $3,000 with which to pay alimony to his wife. Although he gave them a note for the amount, it has not been paid.
An attorney by the name of Moore, who resided at Manilla, went to Oakland, Cal., in December, 1912, where he met and had a conference with Mrs. MacMurtry's attorney in the divorce suit. Moore told the attorney what he knew of the associations of MacMurtry with the Jahn girls and sought to effect an arrangement for Mrs. MacMurtry to file a cross-petition and ask for separate maintenance instead of a divorce. This it is claimed, was to prevent a divorce and the possible subsequent marriage of contestant and MacMurtry. In this,...
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