In re Estate of Armstrong
| Decision Date | 25 June 1921 |
| Docket Number | 34015 |
| Citation | 183 N.W. 386,191 Iowa 1210 |
| Parties | IN RE ESTATE OF SAMUEL ARMSTRONG. RUTH ETTA ARMSTRONG et al., Appellants, v. EDGAR N. ARMSTRONG, Appellee |
| Court | Iowa Supreme Court |
PETITION FOR REHEARING DISMISSED BY APPELLANT SEPTEMBER 23 1921.
Appeal from Cedar District Court.--F. F. DAWLEY, Judge.
THIS action involves a contest on the will of Samuel Armstrong deceased. The jury returned a verdict that the testator, at the time of executing the alleged will, was of unsound mind and judgment was entered on said verdict, denying admission of said will to probate. Proponents appeal. On motion, the court taxed the costs against the estate, from which ruling the contestant prosecutes a cross-appeal.
Reversed.
Henry Negus, Hamiel & Mather, and J. C. France, for appellants.
C. J. Lynch and George C. Hoover, for appellee.
I.
Both parties having appealed, the proponents will be referred to as "appellants," and the contestant as "appellee." The appellee is the son and the appellants are the nieces of the testator.
The testator, Samuel Armstrong, came from Ohio some time in the 70's and located on a farm near West Branch, Iowa. His wife died in 1871, leaving the appellee, who is now about 53 years of age, as her only child. The testator never remarried. The appellee and his father for many years carried on business together, owning a considerable amount of real estate and personal property; and, at the time of the death of the testator, the father and son together had property of a net value of approximately $ 100,000. The testator was a lover of fine horses and a devotee of race tracks, having owned as high as 70 head of race horses at one time. The business, however, does not appear to have been profitable, at least from the standpoint of the owner of the horses.
The appellant Alice Armstrong went to live in the family of the testator in 1879, and kept house for the testator for 22 years. The appellant Ruth Etta Struble came to the Armstrong home in about 1885, and remained there until she was married, in December, 1897. The appellee was married at a time when both of the appellants were living in the family; but, shortly after his marriage, the appellee and his wife moved into another house on the premises.
During the last three or four years of his life, the testator lived more or less at the Struble home, and was there in May, 1917, when the will was executed. By the terms of the will, $ 1,000 is bequeathed to the appellant Alice Armstrong, $ 3,480 to the appellant Ruth Etta Struble, and all of the remainder of the estate is given by the terms of the will to the appellee. The will was executed on May 1, 1917, and the testator died on January 21, 1919. At the time the will was drawn, no one was present with the testator except the scrivener who drew the same. He was a business man, who had known the testator for many years. Regarding the making of the will, he testified that the testator told him that he would like to make a will, and wanted him to write it; that he talked of how he would like to dispose of his property; that he told him that, at the time Ruth Etta came to the house, she brought some money with her, and he felt as though he would like to repay her that money with interest, as a legacy in the will; that he made the same statement in regard to Alice Armstrong, but that the amount was smaller. He told the scrivener to call Mrs. Struble and get the note that she held, and had him figure up the principal and interest, without compounding it. The note was given in May, 1886, and was due six years from date. The amount inserted in the will as a legacy to Mrs. Struble was the amount determined by the scrivener as being due on the note. In regard to the legatee Alice Armstrong, the scrivener testified that the testator told him to make it just $ 1,000. The witness said that, at the time, the testator discussed with him something about the value of the property, especially about the Canada land, as he believed it to be a poor investment; that he said his son Ed was a good boy and loved his children, and he regretted that there were any differences between the Strubles and them. The will was witnessed by the scrivener and by the doctor who attended the testator.
About two months before the execution of the will, the testator joined with the contestant in executing a note and mortgage of $ 10,000. After the death of the testator, the contestant filed an application for the admission of the will to probate, which he subsequently withdrew, and filed a contest.
The only ground of contest in the case is on the claim of mental incapacity on the part of the testator. A large amount of evidence was offered by both parties on this question, and it will serve no useful purpose for us to set it out in detail. The evidence of numerous witnesses, including one expert, in behalf of the appellee tended to show a want of mental capacity on the part of the testator; while, on behalf of the appellants, a large number of witnesses, including the attending physician, testified that the testator was of sound mind. On the whole, the evidence discloses the not unusual situation of an old man afflicted with physical ailments and affected with eccentricities and peculiarities. The deterioration incident to old age is apparent.
The sufficiency of the evidence to sustain the verdict of the jury is challenged on this appeal. In view of the fact that we find it necessary to reverse the case on other grounds, and the further fact that, upon a retrial of the case, if such trial is had, there may be further and additional testimony offered by one or both parties, we refrain at this time from determining the question of the sufficiency of the evidence to sustain the verdict. If the case were triable here de novo, and the credibility of the witnesses and the weight and value of their testimony were matters for our determination, some of us would be of the opinion that there was a failure of proof to show such mental unsoundness as would invalidate the will. Indeed, some of the court entertain doubt of there being sufficient evidence to sustain the verdict of the jury, and believe that, for that reason, a new trial should have been granted.
II. A nonexpert witness, Mrs. Armstrong, the wife of the appellee, was permitted to testify that, in her opinion, the testator was of unsound mind. On cross-examination, it appeared that she based her opinion in part upon matters detailed to the jury and in part upon matters which she observed during her acquaintance with the testator, and which she did not detail to the jury as the basis for her opinion. The appellants moved to strike out the testimony of this witness on this subject, which motion was overruled. It should have been sustained. It is a settled rule in this state that a nonexpert witness must base his opinion, when called upon to testify touching mental unsoundness, upon the facts previously detailed by him in evidence. In re Estate of Burgin, 186 Iowa 928, 171 N.W. 144; 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.
III. Error is predicated upon the overruling of objections of appellants to questions asked various witnesses for the...
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