In re Dunahugh's Will

• Decision Date: 05 June 1906
• Citation: 107 N.W. 925,130 Iowa 692
• Parties: IN RE WILL OF ELIZA A. DUNAHUGH, Deceased, JOHN C. ULUM, Contestant, Appellant
• Court: Iowa Supreme Court

107 N.W. 925

130 Iowa 692

IN RE WILL OF ELIZA A. DUNAHUGH, Deceased, JOHN C. ULUM, Contestant, Appellant

Supreme Court of Iowa, Des Moines

June 5, 1906

Appeal from Story District Court.--HON.J. H. RICHARD, Judge.

ON May 8, 1900, Eliza A. Dunahugh and her husband, Alexander Dunahugh, jointly executed a will in which George W. Atkinson was named as sole devisee. Mrs. Dunahugh died in May, 1904 and the will so executed was offered for probate. John C Ulum, a brother of the decedent, appeared in the proceedings and filed objections as follows: (1) That at the time the will was executed, the said Eliza A. Dunahugh was not of sound and disposing mind; (2) that said will was procured to be executed by fraud, duress and undue influence on the part of George W. Atkinson, the devisee named therein; (3) that said will has been revoked in accordance with law. At the close of all the evidence, there was an instructed verdict in favor of proponent, and the will was ordered admitted to probate. The contestant appeals.

Affirmed.

Milton Remley, for appellant.

E. M McCall and J. A. McCall, for appellee.

OPINION

BISHOP, J.

I.

The proponent offered the will in evidence, and thereto the contestant objected on the ground that it had not been shown that the testatrix was of sound mind at the time of her execution of the instrument. The objection was overruled, and error is predicated on such ruling. It is the precise contention of counsel that as the statute authorizes the making of a will only by persons of full age and sound mind, it was not competent to put the will in evidence until preliminary proof of soundness of mind had been brought forward. This contention may be disposed of by reference to the case of Hull v. Hull, 117 Iowa 738: as there said "it is not necessary in the original evidence in behalf of proponent to introduce witnesses in support of the sanity of the testatrix. Sanity is presumed until there is evidence to the contrary." But, aside from this, the subscribing witnesses to the will, one of whom was the attorney who drew the instrument, who had known the testatrix for many years, testified that at the time of execution she was in her usual health. This was sufficient in any event.

II. Josiah Dunahugh, a brother of Alexander, was called as a witness for contestant, and in the course of his examination in chief answered that as to some fact matters testified to by him his knowledge was based solely on what he had been told by Mrs. Dunahugh. The proponent moved to strike out the testimony "under section 4604 of the Code, as hearsay." The motion was sustained, and this is said to present error. Just what idea was intended to be conveyed in stating the grounds of the motion is not very clear. Counsel for contestant insists that the subject-matter was foreign to any thought involved in the section of the Code invoked, and this we may concede to be true. But the testimony struck at was clearly enough hearsay, and as that ground was at least comprehended in the motion, the ruling was correct.

III. During the examination in chief of a witness for contestant counsel for proponent repeatedly interrupted with an objection that the answer of the witness was not responsive to the question, and such objections were sustained. It is insisted that herein was error, and this for the reason that no one but the party conducting the examination of a witness can be heard to object to an answer on the ground that it is not responsive. We agree that the rule is as contended for by counsel. If the evidence given by a witness is competent and material, the examining party may adopt it even though not strictly in response to the question propounded. "The objection that an answer is not responsive is one to be made by the party who does the questioning and not by his antagonist; if the answer is proper evidence, the party who is examining the witness has the right to take and retain it if he desires so to do." Merkle v. Bennington Tp., 58 Mich. 156 (24 N.W. 776, 55 Am. Rep. 666). But accepting this to be the rule, the record must show substantial prejudice arising out of an adverse ruling or the judgment will not be disturbed. Considering the rulings made as equivalent to an order sustaining a motion to strike the answers already in the record, and without entering upon details, we think the matter involved in such answers as not of sufficient importance to warrant a conclusion of prejudice. Moreover, had contestant desired the evidence thus ruled out as not...