In re Dobals' Estate
| Decision Date | 07 April 1916 |
| Docket Number | 30433 |
| Citation | 157 N.W. 169,176 Iowa 479 |
| Parties | IN RE ESTATE OF FRIEDA DOBALS, Deceased. v. B. S. ANDERSON, Appellee JOHN SCHULTZ et al., Appellants, |
| Court | Iowa Supreme Court |
REHEARING DENIED WEDNESDAY, JUNE 28, 1916.
Appeal from Crawford District Court.--M. E. HUTCHISON, Judge.
THIS is a will contest over the admission to probate of an instrument purporting to be the last will and testament of one Frieda Dobals, deceased, upon objections filed by some of her children. The cause was tried to a jury, and, at the conclusion of all the evidence, on motion of the proponent, a verdict was returned, by direction of the court, sustaining the instrument as the last will of deceased, and it was admitted to probate, and B. S. Andreson, the party named in the will, was appointed executor. From that action of the court, contestants have appealed.
Affirmed.
Sims & Kuehnle, for appellants.
J. P Conner, for appellee.
1. At the time the will was drawn, the testatrix, who was a widow about 60 years of age, lived alone in a house at Schleswig, Iowa. She was a German lady, but had lived in this country many years. She owned a farm and some small amount of other property in addition. One B. S. Anderson, a banker at Schleswig, had acted as her adviser in business matters. When she thought of making a will, she requested Anderson to call Mr. White, an attorney at Ida Grove, to draw the will for her. Mr. White had drawn her husband's will and had looked after some affairs for the family. Mr. White arrived in Schleswig, stopped at the bank to see Mr. Anderson, who had called him, and they went together to the home of deceased. She was up and around the house, but not feeling very well.
The principal point relied upon by contestants is as to whether deceased could understand the English language well enough to understand the will, and what she was doing at the time of its execution. The evidence on this point will be referred to more particularly later in the opinion. The will was written in English and is dated August 1, 1913. She died the 24th of the same month. At the time of the execution of the will, the record shows, we think without conflict, that she told Mr. White in English the disposition she wanted to make of her property, and Mr. White wrote it out. Then while Mr. White was writing, she talked the provisions over with Mr. Anderson in German, which was her native tongue, and then Mr. Anderson told Mr. White in English what she had told him in German. Mr. White says it was the same as what he had understood previously from her in English. The will was prepared in this way, a paragraph at a time, and when it was finished, it was read over to her, and a neighbor, Mr. Jacobson, was called in, who, with Mr. White, witnessed the execution of the will on the part of the testatrix.
The will was filed in the clerk's office on August 27th, by B. S. Andreson, the proponent. By its terms, said Anderson, who was her banker as well as a member of and officer in the Evangelical Church of Peace in Schleswig, and who was present at the time the instrument was drawn, was given $ 500. The said Church of Peace and two of its pastors were each given $ 500. The daughter Ida testifies that her mother was a church member. Two of her children were given $ 5 each; three others, $ 500 each; a granddaughter, an infant daughter of her son Herman, was given $ 10,000 in trust; and one daughter, the rest and residue of the estate. The said Andreson was named as executor and given control and management of the estate during the minority of the infant.
In 1894, deceased and her first husband, one Schultz, separated, and there was a divorce, some of the children siding with the father and some with the mother. Four of the children filed objections to the probate of the will, but three of them withdrew, and another daughter joined in the contest; so that, as the case went to trial, the objectors were a daughter Ida, who lived in China, and a son, John Schultz, who were the only contestants. These are the two who received but $ 5 each by the will. Ida testifies that her brother John had mistreated his mother and sided with the father; that Ida also sided with the father and was not on very friendly terms with her mother.
It is admitted that, so far as the formal execution of the will is concerned, there was no dispute. The objections against the probate were the lack of mental capacity to make a will, and undue influence. There was no evidence, and it is not claimed by appellant, that under the testimony there was a showing that deceased was of unsound mind, in the sense, as appellant puts it, that she was not able to reason and deliberate and understand in the German language. The contention is, as they state it, that it did appear that there was a question as to whether she had the mind required--that is, the knowledge of the English language required--to make the disposition of her property in English that was made in the will in this case; that, because of her imperfect understanding of the English language, she did not comprehend and understand the terms of the will as written. There is no evidence whatever that there was, in fact, any undue influence attempted or used at the time of the execution of the will. There was no fiduciary relation between deceased and the attorney who drew the will, and, as stated, the real contention is as to whether deceased understood the will drawn in English, and whether, from the circumstances of the case and the relation existing between deceased and Mr. Anderson, one of the beneficiaries, there was enough to take the case to the jury on the question of undue influence.
Counsel for appellants say that they are not concerned so much in this case with the burden of proof on the question of the execution of the will, and we do not understand them to contend that there was such a fiduciary relation between deceased and any of the parties concerned in the will as to shift the burden; but, if that is their claim, we think it cannot be sustained. Some of the cases hold, in effect, that where a testator is old and feeble, but the evidence is not sufficient to show mental incapacity to make a will, and there are peculiar circumstances surrounding the parties, such weakened mental condition and circumstances indicating undue influence may be coupled together in such a way as that it may be said that, under the whole record, the transaction is not the real and valid act of the person. It is conceded that there is, in the first place, a presumption from the fact of signing the will that deceased knew what it contained. Ross v. Ross, 140 Iowa 51, 117 N.W. 1105; Keithley v. Stafford, 126 Ill. 507, 18 N.E. 740. Ordinarily, the party alleging undue influence has the burden of proving it. Hanrahan v. O'Toole, 139 Iowa 229, 117 N.W. 675; Gates v. Cole, 137 Iowa 613, 115 N.W. 236. And we have held that advice and solicitation are not enough to establish undue influence. Gates v. Cole, supra; Townsend v. Townsend, 128 Iowa 621, 105 N.W. 110; Chambers v. Brady, 100 Iowa 622, 69 N.W. 1015.
Proof of disposition and opportunity is not enough to establish undue influence. Fethergill v. Fethergill, 129 Iowa 93, 105 N.W. 377. But, as we have already stated, there is no evidence in this case that there was any solicitation on the part of anyone, at or before the execution of this will, to influence or induce testatrix to execute it, or to execute it in any particular way. The only point claimed here is that, because Andreson was present and talked with deceased in German and was a beneficiary, this is enough; but, as we have already stated, the evidence is undisputed that the attorney, Mr. White, who drew the will, got his information from deceased in English; that, while he was drawing the different paragraphs, deceased talked it over with Mr. Anderson in German, and that Mr. Anderson told the attorney what she had said, and that it was the same as she had told Mr. White.
Appellant cites authorities, and it is undoubtedly the law, that one who is incapable of exercising judgment, reason and deliberation, and understanding the consequence of his will to a reasonable degree and its effect upon his relatives and estate, has not sufficient mental capacity to make a valid will. They cite, among other cases, Bever v. Spangler, 93 Iowa 576, 61 N.W. 1072, where the rule is, perhaps, more accurately stated, and they say that the testator must know the contents of his will in order to understand the consequences and its effect upon his relatives, and they say that, because the will was written in English and deceased was a German, and was unable, as they say, to understand or write the English language, she could not understand the will. This makes it necessary that we refer perhaps a little more fully to the testimony, but we shall not go into the evidence in detail.
Only Anderson, White and deceased were present at the time the will was drawn, until the...
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