In re Estate of Rehard
| Decision Date | 22 November 1913 |
| Citation | 143 N.W. 1106,163 Iowa 310 |
| Parties | In the MATTER OF THE ESTATE OF JOHN REHARD, Deceased |
| Court | Iowa Supreme Court |
Appeal from Madison District Court.--HON. LORIN N. HAYS, Judge.
THIS action involves a contest of the will of John Rehard deceased. The contest was instituted in resistance to the probate of the will. At the time of the execution of the will the testator was about eighty-six years of age. The only grounds of contest upon which testimony was offered was the alleged mental incompetency of the testator to make the will. There had been four children of the testator, viz., John Rehard, L. H. Rehard, Regan Rehard, and Mrs. Egy. Only two of these survived the testator, John and Regan Rehard having previously died. John Rehard, the son, left a family. The property which was devised to John in a previous will was devised to his family in the present will. Substantial provision was made in the will for both the surviving children and for the family of John. The alleged inequality in the provisions of the will is that a larger provision was made for the daughter than for the other beneficiaries. The contest was instituted by Ersie, a son of John Rehard, the deceased son of the testator. There was a trial to a jury and verdict sustaining the will. It was accordingly admitted to probate, and the contestant appeals.
Affirmed.
Robbins & Nicholson, for appellant.
A. W. & Phil R. Wilkinson and W. S. Cooper, for appellees.
I.
One ground of complaint here is that the verdict was not sustained by sufficient evidence. In response to this assignment of error we have read the entire record. The complaint at this point is not justified by the record. The testimony in the record in support of the mental competency of the testator is overwhelming, while the testimony to the contrary on behalf of the contestant is quite meager.
II. The contestant asked the trial court to instruct the jury that "negative evidence is of a lower character than affirmative evidence." This was refused, and error is assigned upon such refusal. The alleged pertinency of such request is based upon the fact that a large number of witnesses for the proponent who were acquainted with the testator testified to business transactions and conversations with him, and testified also that they observed nothing in his conduct or conversation indicating mental weakness; whereas, witnesses for the contestant testified also to conversations and transactions with the testator from which they expressed opinion of the mental unsoundness of the testator. The theory of the appellant is that the testimony of his witnesses was affirmative, while that of the proponents' witnesses was negative. Whatever may be said as to the abstract correctness of the rule contended for (In re Wharton, 132 Iowa 714, 109 N.W. 492), it was inappropriate to the case before us. The opinion of a witness sustaining the mental competency of the testator based upon actual observance may be no less affirmative in its essence than is that of the witness who testifies adversely to such mental competency. The instruction was properly refused.
III. One of the witnesses to the will was A. W. Wilkinson, the attorney who drew the same. The will contained a provision nominating E. E. Orris as executor. It also directed that in the settlement of the estate "he shall employ as his attorney A. W. Wilkinson." Objection was made to the competency of Wilkinson as a witness to the will on the ground that he was a party in interest under its provisions. This objection was overruled. We think the ruling was correct. The alleged interest of Wilkinson was indirect and uncertain. It conferred no legal right upon him whatever. The provision was not binding upon the executor nor upon the court in the administration of the estate. The interest which would render a witness incompetent must be of a definite and legal nature. Hawkins v. Hawkins, 54 Iowa 443, 6 N.W. 699; Quinn v. Shields, 62 Iowa 129, 17 N.W. 437; Bates v. Officer, 70 Iowa 343, 30 N.W. 608. The interest shown here is remote, indirect, and uncertain. It could doubtless be shown as bearing upon the weight of the testimony of the witness; but his competency was not affected thereby. There is the further consideration that by the provisions of Code, section 3275, a subscribing witness to a will is prohibited from deriving any benefit therefrom. The apparent purpose of this statute is to save the competency of a witness to a will even at the expense of the benefit which he might otherwise receive thereunder.
IV. Complaint is made of instruction No. 13 given by the trial court, which is as follows:
It is alleged that this instruction was erroneous on the ground that it permitted the jury to determine the materiality of facts included in the hypothetical question. This instruction is doubtless technically erroneous. The question involved has been considered in a number of our previous cases. Hall v. Rankin, 87 Iowa 261, 54 N.W. 217; Kirsher v. Kirsher, 120 Iowa 337, 94 N.W. 846; Stutsman v. Sharpless, 125 Iowa 335; Ball v. Skinner, 134 Iowa 298, 111 N.W. 1022; Stanley v. Taylor, 160 Iowa 427, 142 N.W. 81. An examination of the record in this case, however, satisfies us that the error was wholly technical, and could not have been prejudicial to the appellant.
The following hypothetical questions were put to Dr. Hill by the proponent:
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