In re Glass' Estate

Decision Date14 June 1905
Citation103 N.W. 1013,127 Iowa 646
PartiesIn re Estate of JOHN P. GLASS, Deceased, I. O. GLASS and others, Proponents, Appellants, v. JASPER D. GLASS and others, Contestants
CourtIowa Supreme Court

Appeal from Linn District Court.-- HON. J. H. PRESTON, Judge.

THE will of John P. Glass was offered for probate and contested on the grounds of mental incapacity and undue influence. There was a trial to a jury, and a verdict and judgment for the contestants. The proponents appeal.-- Reversed.

Reversed.

Heins & Heins and Dawley, Hubbard & Wheeler, for appellants.

Smith & Smith and Flickinger Bros., for appellees.

OPINION

SHERWIN, C. J.

John P. Glass died on the 14th day of February, 1900, and on the 22d day of the same month an instrument purporting to be his will was filed for probate. Objections thereto were filed on the 20th day of March, 1900. A part of the land of which Mr Glass died seised had come to him through a conveyance from John Dodge to his wife, Eliza A. Glass, and after the death of Mr. Glass, and after the contest over his will had arisen as we understand the record, an action was brought by some of the contestants herein claiming title to a portion of the land so conveyed by John Dodge to Eliza A. Glass, and asking a partition thereof on the ground that Eliza A. Glass took only a life estate under the deed. Flickinger Bros., of Council Bluffs, Iowa were the plaintiffs' original attorneys in the partition suit. At that time Judge Preston was a member of the law firm of Preston, Grimm & Moffit, of Cedar Rapids, Iowa in the county where the suit was to be brought. After some correspondence between Flickinger Bros. and Mr. Grimm, an original notice in that action was drawn by Judge Preston and signed "Flickinger Bros. and Preston, Grimm & Moffit," and the petition in the case bore the same signature. Before the issues were finally settled, however, Judge Preston was elected to the district bench, and his name did not appear further as an attorney in the case. As a matter of fact, he had never consulted with any one about the merits of the case, and knew nothing thereof, and the record shows conclusively that his firm's connection therewith was at that time, at least, only nominal, and for the accommodation of Flickinger Bros. The proponents objected to trying the instant case before Judge Preston on the ground that he was disqualified under section 284 of the Code, which disqualifies a judge where he has been attorney for either party in the action or proceeding, and it is now insisted that Judge Preston should not have tried the case. This is clearly not the same action or proceeding that Judge Preston's firm appeared in, and under the strict letter of the statute he was clearly not disqualified from hearing this case. If the precise issue presented here had in fact been a material issue in the partition case, and if Judge Preston's firm had been attorneys therein in fact, instead of nominally only, it might be said that the spirit of the statute is broad enough to disqualify. But it does not appear that the validity of the will in question could have been controlling in the other case. As we understand the record, the plaintiffs' claim there was that the deed from John Dodge to Eliza A. Glass conveyed only a life estate, and a determination of that question in no way involved the validity of John P. Glass' will.

Over the objections of the proponents, the court permitted nonexpert witnesses to testify that shortly before the execution of the will, and at about the time that it was executed, the deceased was of unsound mind, and incapable of intelligently transacting business or disposing of his property. While undue influence was charged, as well and incapacity, the real contest was on the latter ground; and there was evidence tending to show that the incapacity amounted to senile dementia, and had existed for a long time before the will was executed. The ultimate question for the jury to determine was whether the testator had sufficient mental capacity to dispose of his property by will at the time the instrument was executed, and this precise question was, in effect, answered by the witnesses to whose testimony we have referred.

So far as the questions and answers related to the time of making the will, or to a time so closely approximating thereto as to amount to the same thing, there was error in receiving the testimony, for the reason that the ruling permitted the witness to testify, in effect, that the testator was capable of making the will in question, and such testimony is incompetent under the rule of our own decisions and by the weight of authority. Pelamourges v. Clark, 9 Iowa 1. But other questions of the same kind related to the testator's capacity at a time prior to the execution of the will, and the testimony so elicited, we think, was competent. Personal acquaintance, contact, and observation disclose the mental characteristics of persons, and from this association we form judgments as to the mental capacity of those with whom we come into such close relationship. A person may be entirely sound mentally on all subjects save one, and as to that particular subject his mind may be so diseased as to render it impossible to say that he is of sound mind. If a witness who is called to testify as to mental capacity is confined to the bare statement or conclusion that the person was either sane...

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