In re Burgin's Estate

• Citation: 171 N.W. 144,186 Iowa 928
• Decision Date: 24 March 1919
• Docket Number: 32302
• Parties: IN RE ESTATE OF L. C. BURGIN, Beceased. v. ELLA M. BURGIN, Appellant BESSIE M. TAGGART et al., Appellees,
• Court: United States State Supreme Court of Iowa

171 N.W. 144

186 Iowa 928

IN RE ESTATE OF L. C. BURGIN, Beceased.

BESSIE M. TAGGART et al., Appellees, v. ELLA M. BURGIN, Appellant

No. 32302

Supreme Court of Iowa, Des Moines

March 24, 1919

REHEARING DENIED JULY 7, 1919.

Appeal from Clay District Court.--D. F. COYLE, Judge.

THIS controversy involves a contest of the will of L. C. Burgin deceased. Judgment was entered upon the verdict of the jury finding that the testator was of unsound mind at the time the will was executed. Proponent appeals.

Reversed.

Buck & Kirkpatrick, Francis & Owen, and Cosson & Francis, for appellant.

Heald & Cook and E. A. Morling, for appellees.

STEVENS, J. LADD, C. J., GAYNOR and PRESTON, JJ., concur.

OPINION

STEVENS, J.

I.

The will in question was executed April 17, 1908, and filed for probate February 17, 1916. The proponent is the surviving widow of the testator, and the contestants are his daughters and only heirs at law. Testator was possessed of considerable property, and, shortly after the will was executed, was, upon hearing before the commissioners of Clay County, committed to the asylum at Cherokee, where he remained until his death. The question of the sufficiency of the evidence to sustain the verdict is not involved.

Appellant relies for reversal upon alleged errors of the court in the admission of evidence, and its instructions to the jury. A non-expert witness, who testified that, in his opinion, testator was of unsound mind at the time the will was executed, answered, upon cross-examination, that he based his opinion partly upon matters detailed, and partly upon matters not referred to in his testimony. Counsel for appellant moved that the testimony of this witness be stricken. It is a settled rule in this state that a non-expert witness must base his opinion, when called upon to testify touching mental unsoundness, upon the facts previously detailed by him in evidence. The motion to strike should have been sustained. In re Will of Norman, 72 Iowa 84, 33 N.W. 374; Spiers v. Hendershott, 142 Iowa 446, 120 N.W. 1058; Bales v. Bales, 164 Iowa 257, 145 N.W. 673.

II. Evidence of the financial condition of contestants was received in evidence over proper objections of counsel for proponents. The objection urged to this testimony is that it was not shown that the testator, at the time he signed the will, had knowledge of the financial condition of contestants. This evidence was offered for the purpose of throwing light upon the reasonableness or unreasonableness of the will, and was admissible only upon a showing that the testator had knowledge thereof. Direct evidence of knowledge was, of course, not required,--it might be inferred from other facts and circumstances. In the absence of knowledge of the financial condition of those having claims upon his bounty, evidence of their financial condition is not admissible. Stutsman v. Sharpless, 125 Iowa 335, 336, 101 N.W. 105; Philpott v. Jones, 164 Iowa 730, 146 N.W. 859. Nothing is shown in this case except that the daughters lived in Spencer, at the time the will was executed, and that the husband of one was a switchman, and of the other, a bank cashier. It did not appear that he had knowledge of the extent or value of the property of either, some of which consisted of Dakota farm land. The showing of knowledge was not sufficient.

III. Counsel also contend that some of the witnesses were permitted to express their opinion upon the ultimate...