In re Estate of McElderry

• Decision Date: 12 December 1933
• Docket Number: 41904
• Citation: 251 N.W. 610,217 Iowa 268
• Parties: IN RE ESTATE OF ANNA MCELDERRY. JOHN DIMMICK, Appellant, v. ST. PATRICKS CATHOLIC CHURCH et al., Appellees
• Court: Iowa Supreme Court

251 N.W. 610

217 Iowa 268

IN RE ESTATE OF ANNA MCELDERRY. JOHN DIMMICK, Appellant, v. ST. PATRICKS CATHOLIC CHURCH et al., Appellees

No. 41904

Supreme Court of Iowa, Des Moines

December 12, 1933

Appeal from Harrison District Court.--EARL PETERS, Judge.

Action to probate an instrument purporting to be the will of Anna McElderry. At the close of the evidence proponents' motion for a directed verdict was sustained and the instrument was allowed and established as a will, from which action this appeal is prosecuted.--Reversed and remanded with directions.

Reversed and remanded, with directions.

Welch & Virtue and Robertson & Wolfe, for appellant.

Fred E Egan and Tamisiea & Tamisiea, for appellees.

CLAUSSEN J. ALBERT, C. J., and EVANS, KINDIG, and DONEGAN, JJ concur.

OPINION

CLAUSSEN, J.

Anna McElderry died in her home in Missouri Valley, Iowa, on September 13, 1932. On July 26, 1932, an instrument was executed which was offered for probate as her last will and testament. Objections were filed to the probate of this instrument, and in due time the issues presented by the offer and the objections were tried to a jury in the Harrison district court. At the close of proponent's testimony a motion for a directed verdict was made by the objectors which was overruled. At the close of all the testimony, motions for a directed verdict were made by both sides. The objectors' motion was overruled. The proponent's motion was sustained. From such action this appeal is prosecuted.

On the day the purported will was executed, W. J. Burke, a banker in Missouri Valley, and Dr. Fogarty, the family physician of the deceased, went to the home of the decedent. At that time a sister of the deceased's husband was staying with the deceased. Upon arriving at the decedent's home an unsuccessful effort was made to induce her to go to a hospital. After the failure of these efforts, Mr. Burke, who had taken care of the decedent's business for a number of years, requested the sister-in-law and the doctor to leave the room. The complied with this request and went to the front porch, which was at some distance from the room. After some little time Burke recalled them to the room, and at his request each of them signed the instrument, offered as a will, in two places indicated by Burke. The decedent was an elderly woman and at the time of the transaction was in poor health and was evidently very feeble. At the time the instrument was signed by the sister-in-law Ella B. Deal and Dr. Fogarty, the decedent was lying on a daybed in the room. The decedent did not sign the instrument in the presence of either Mrs. Deal or Dr. Fogarty, her signature evidently having been affixed to the instrument before the witnesses were summoned to return to the room. Dr. Fogarty states that upon his return to the room he signed his name to the instrument in the places indicated by Burke and that nothing was said concerning the character of the instrument or the signature of the decedent on the instrument. The record of the testimony of Mrs. Deal in relation to what took place at the time the instrument was signed by her and Dr. Fogarty is as follows:

"He (Burke) just showed me where to sign. He came on to the porch where Dr. Fogarty and I were and told us to come in; witness does not remember just what was said. He said he wanted us to sign papers.

"Q. When he (Burke) called you to the room, what did he say to you in the presence of Mrs. McElderry? A. Well, he came on to the porch where Dr. Fogarty and I were and told us to come in.

"Q. What did he say to you? A. I don't remember just what he said.

"Q. Didn't he say anything to you about what you were doing? A. He said he wanted us to sign some papers.

"Q. State whether or not you knew at the time that you placed your signature twice upon this instrument, whether you knew you were witnessing the signature of Mrs. McElderry? A. Mr. Burke told us that was her signature."

And again this witness said:

"The porch where we went is I think thirty or forty feet from where Anna McElderry was on the bed. I did not hear her talk in the room where Mrs. McElderry and Mr. Burke were when Dr Fogarty and I were out on the porch, not a word. After some time Mr. Burke came to the door leading out on to the porch and told us to come in. The porch is on the east side of the house, and the dining room where Mrs. McElderry was is in the southwest part of the house. Mr. Burke told us to come in and sign, witness to her signature; to come in and witness her signature; that is all he said. Dr Fogarty or I did not say anything at that time. Then Dr. Fogarty and I went into the room where my sister-in-law was. When we got in the room where my sister-in-law was Mr. Burke had this paper that I signed, Dr. Fogarty signed this paper first. He signed twice and then they showed me where to sign. Mr. Burke showed me where to sign, and he told me where to sign on this paper (referring to the will in question). He said 'sign on this line.' I don't know whether he said anything to Dr. Fogarty. When I signed Exhibit 1 it was folded up. * * * Dr. Fogarty did not say anything there when I signed this paper, Exhibit I, not a word; and I did not say anything, not a word, at the time I signed the paper. Mr. W. J. Burke just pointed out the line on this paper, Exhibit 1, where I was to sign at the time; don't think he said a word; that is my best recollection. After Dr. Fogarty and I had signed Exhibit 1 Mr. Burke took it; if he said anything I don't remember it; after he took Exhibit 1 he put it in his pocket. I don't know for sure what he did with it. He stood and watched us sign it and then he picked it up, and...