In re Cooper's Estate

• Decision Date: 15 December 1925
• Docket Number: 36603
• Parties: IN RE ESTATE OF JOSEPH N. COOPER. v. JOSEPHINE P. BRIDGE et al., Appellants J. P. COOPER et al., Appellees,
• Court: Iowa Supreme Court

206 N.W. 95

200 Iowa 1180

IN RE ESTATE OF JOSEPH N. COOPER.

J. P. COOPER et al., Appellees, v. JOSEPHINE P. BRIDGE et al., Appellants

No. 36603

Supreme Court of Iowa, Des Moines

December 15, 1925

Appeal from Marshall District Court.--B. F. CUMMINGS, Judge.

CONTEST on the probate of the will of Joseph N. Cooper. From a directed verdict in favor of the proponents the contestants appeal.

Affirmed.

E. N Farber and H. C. Lounsberry, for appellants.

G. A Mote, F. E. Northup, and C. H. E. Boardman, for appellees.

ALBERT J. FAVILLE, C. J., and EVANS and MORLING, JJ., concur.

OPINION

ALBERT, J.

Contest was entered against the will of Joseph N. Cooper, on the grounds of mental incapacity and undue influence. This case has been before this court, and the opinion thereon may be found in 196 Iowa 116. On a retrial, contestants, in examining nonexpert witnesses, offered to show that at certain times the deceased appeared to be childish. Witnesses were also asked as to the mental condition and memory of the deceased. These two lines of testimony were successfully objected to, and it is now urged that the district court erred in excluding these.

As the record stood at the time these lines of testimony were offered, they should have been admitted. Smith v. Hickenbottom, 57 Iowa 733, 11 N.W. 664; Parsons v. Parsons, 66 Iowa 754, 21 N.W. 570; Manatt v. Scott, 106 Iowa 203, 76 N.W. 717; In re Estate of Goldthorp, 94 Iowa 336, 62 N.W. 845. Under this line of authority, it is apparent that the lower court erred in excluding both the indicated lines of testimony. In the testimony of Dr. M. L. Allen, this question was asked:

"Now you have described what you observed of his physical condition, as well as his mental condition, as the years progressed, and you may state whether or not, during the later years of your acquaintance with him, he became childish; also, what did you observe of his physical and mental condition, as the years progressed, and during the later years of your acquaintance with him, with respect as to whether he appeared to be senile?

"Q. What did you say appeared to be his condition mentally during the later years of his life, as you observed it, as to whether or not there was any process of decay? A. You mean mental decay? A. Yes."

Objection was interposed to this last question, as to all previous questions, and sustained. The doctor was asked this further question:

"Well, now, during the later years that you knew him,--say the last three or four years of your acquaintance with him,--what would you say as to his mental condition being sound or unsound,--which was it?"

Objection to this question was also sustained. Under the rule above cited, it was error on the part of the court to refuse to permit the witness to answer these questions.

As above noted, the district court directed a verdict in favor of the proponents herein, and such ruling is assigned as error. We are, therefore, confronted with the situation of determining whether or not the evidence already admitted in the case, plus the evidence offered along the line above indicated, would have been sufficient to take the case to the jury. The writing offered consisted of the original will, bearing date of June 4, 1913, together with an additional writing, dated May 13, 1919. Joseph N. Cooper died on May 28, 1919. The testimony, in so far as mental incapacity and undue influence are concerned, consists of nonexpert testimony, aside from that of Dr. Allen, the sum total of which is that these various witnesses knew the decedent from a time antedating the making of the original will. They were his neighbors, friends, and associates, and they testify to his various eccentricities, peculiarities, and physical disabilities; that he was 82 years of age when he died; that he was of a nervous and excitable temperament; that at one time he had an accident which compelled him to walk with crutches, and later with a cane; that he was stooped with age in the later years of his life, and lived principally in the past; that he repeated stories frequently of the early days; that through all the years of his life he played the fiddle, danced the jig, and attempted to play tunes on a turkey bone; that he was given at times to talking to himself, and as the years advanced, he grew weaker, naturally; that sometimes he had dizzy spells; that he was rather arbitrary with the members of his family, and on one occasion threatened to shoot one of the boys; that on some occasions he did not recognize the witnesses when he met them; that he was forgetful,--and much other testimony along this line, the most of which goes wholly to the question of his physical condition. The question is whether the testimony of these various witnesses, which we have heretofore held to be admissible,--to wit, that, as the years advanced, his mind became more feeble, that he grew childish, and that, in the opinion of the witnesses, he was of unsound mind,--coupled with the inequality of the distribution of his property among his children, would be enough to take the question of his mental capacity to the jury. Before answering this question, we have another question to consider.

After testifying that he is a physician and surgeon, Dr. Allen states that at one time he was called to wait upon the deceased for some physical ailment. Aside from this, he never made any examination of the deceased, or any observation to determine his mental condition. He saw him and observed him as he saw and observed other people on the street or in his business, but does...