In re Goldthorp's Estate
| Decision Date | 06 April 1895 |
| Citation | 62 N.W. 845,94 Iowa 336 |
| Parties | IN THE MATTER OF THE ESTATE OF ALICE GOLDTHORP, Deceased. JOHN R. GOLDTHORP, SARAH JANE GOLDTHORP, AND C. H. EIGHMEY, Executor, Appellees. EDWARD GOLDTHORP, Appellant |
| Court | Iowa Supreme Court |
Appeal from Dubuque District Court.--HON. J. L. HUSTED, Judge.
Proceeding to determine the validity of a will. Trial to jury. Verdict for proponents. Contestant appeals.
Reversed.
W. J Knight and R. W. Stewart for appellant.
Lyon & Lenehan for appellees.
I.
Proponents filed for probate in the office of the clerk of the district court of Dubuque county, Iowa an instrument purporting to be the last will and testament of Alice Goldthorp, deceased. By the terms of said will, the testatrix gave and bequeathed unto her daughter, Sarah Jane Goldthorp, and to her son, John R. Goldthorp, in equal shares, all of her estate, real and personal, "to have and to hold the same, forever." C. H. Eighmey was nominated in the will as executor. Contestant, the appellant, filed exceptions to said instrument and its probate, upon the ground that it was not the will of deceased; that it was procured to be executed by fraud, coercion, and by undue influence. He also averred that, at the time said will was executed, the decedent did not have sufficient mental capacity to make a will. Upon the issues thus formed, a trial to a jury was had, which resulted in a verdict, rendered under the court's direction, that the instrument was the last will and testament of Alice Goldthorp, deceased.
II. Some eighty odd errors are assigned in this record, and nearly all arise upon the rulings of the court excluding evidence offered on behalf of contestant. We can only consider in detail the most important questions thus presented. Error is assigned upon the rulings of the court excluding the testimony of contestant as to conversations had with his mother, the decedent. The ground of objection to this proposed testimony was that the witness was incompetent, under the provisions of Code, section 3639, to give evidence touching such conversations. That section provides that "no party to any action or proceeding, nor any person interested in the event thereof, * * * shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, * * * against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee," etc. Appellant claims that the statute has no application to the proposed evidence, because: First. Sarah and John are not legatees until this will is probated. Second, That prior to the probating of the will, it is not certain that they ever will be legatees, and hence the testimony cannot be said to be offered against them as such. Brown v. Bell, 58 Mich. 58, 24 N.W. 824. Third, That, as contestant was a nonexpert witness, and must state the facts upon which his opinion was based as to the unsoundness of testatrix's mind, it is competent evidence to show his qualification to express such opinion, and is not within the statute, unless contestant's opinion would come within the prohibition. In other words, the first two propositions are based upon the thought that one named in a will as legatee is not such, within the meaning of this statute, until the probate of the will. We do not think the law should be so construed. If appellant's view is correct, then any party to an action or proceeding, or any one interested therein, is a competent witness to testify against a legatee or devisee named in a will before it is probated, but not after its probate. We discover nothing justifying such an interpretation of the statute. Under such a construction, the application of the statute in such a case is made to depend upon the final result of the inquiry as to the validity of the will. When we consider the evil the legislature was attempting to remedy by the enactment of the law, it seems to us clear that the proposed construction is far-fetched and unnatural. It may probably be assumed that the legislature, in enacting this statute, had in mind the rule of law as to when a will takes effect. We have held that, no matter when a will is dated or published, it takes effect, or speaks, as it is sometimes said, from the time of the testator's death (Lorieux v. Keller, 5 Iowa 196; Stephenson v. Stephenson, 64 Iowa 534, Schouler, Wills, section 486); and we have said that a legacy vested in the legatee at the time of the death of the testator (Bowen v. Evans, 70 Iowa 368, 30 N.W. 638), and that the title of a devisee vests at death of the testator (Otto v. Doty, 61 Iowa 23, 15 N.W. 578). The relation of legatee is created by the will, and under these holdings becomes effective to vest title on the testator's death. Contestant was a person interested in the event of the litigation. He was proposing to testify as to personal conversations had with the deceased against one of the very parties whom the law protects against such testimony. We have no doubt that, so far as this contention was concerned, he was an incompetent witness. The case of Brown v. Bell, supra, was decided under the statute of Michigan, which is materially different from our own.
III. Nor do we think appellant's third proposition can be sustained. The theory of that claim is, that as the nonexpert witness must show to the court that he is qualified to give an opinion as to the mental condition of the decedent before he will be permitted to express his opinion, and as testimony tending to show such qualification is preliminary, only, to the main issue, he should be permitted to testify to conversations had with decedent. It should be stated here that the evidence shows that the opinion which the contestant formed as to decedent's mental condition was largely, if not wholly, based upon these conversations. It is said that an opinion is not a "transaction or communication," and hence is admissible. Though not in and of itself a "transaction or communication" had with decedent, yet, if it is in fact but the result, the outgrowth, and the conclusion arrived at from a consideration of prohibited testimony, it is not easy to see upon what ground, in view of the provisions of the statute, the qualification can be shown to give the opinion, or the opinion itself be stated, under the circumstances herein disclosed. It is said that the decedent, if living, could not dispute the testimony of contestant as to his opinion of her soundness of mind; that the testimony proposed is for the purpose of proving a fact distinct from anything said or done, independent of any information received from the language employed. The position does not seem to us tenable. The opinion, in such a case, where it is based upon the conversations, is dependent upon the facts from which it is deduced,--the conversations. Without the conversations there could be no ground for the opinion. How, then, can the opinion be said to be a fact distinct from and independent of the conversations? Now, clearly, if decedent was alive, she could by her testimony controvert and gainsay the conversations. She might testify that no conversations took place. Where, then, under the facts shown in this record, would be the basis for the opinion? Counsel, in support of their claim, cite Marietta v. Marietta, 90 Iowa 201, 57 N.W. 708; Sankey v. Cook, 82 Iowa 125, 47 N.W. 1077; and Dysart v. Furrow, 90 Iowa 59, 57 N.W. 644. We need not discuss these cases. They hold that testifying to one's handwriting, when such testimony is based upon one's general knowledge, and not on the fact of seeing decedent write the signature in controversy, is not testifying to a personal transaction; and that one may make preliminary proof as to his books of account against an administrator. In such cases the testimony is not based upon conversations or transactions with the decedent. This case is, as we have seen, very different in its facts in that respect. If, as we have seen, contestant is not a competent witness to testify as to conversations had with the decedent, it follows he cannot testify to an opinion based upon testimony as to which the statute makes him an incompetent witness. See Denning v. Butcher, 91 Iowa 425, 59 N.W. 69.
IV. Complaint is made that the court erred in excluding evidence of contestant as to decedent's mental condition, which was based upon observation and facts independent of any conversation or communication had with decedent. It is the law in this state that facts ascertainable from observation alone are not considered personal transactions. That contestant was a competent witness to testify to the mental condition of the decedent, in so far as his testimony was based upon his observation of decedent, her appearance, conduct, manner, and habits, there can be no doubt. Severin v. Zack, 55 Iowa 28; Parsons v. Parsons, 66 Iowa 754, 21 N.W. 570; Meeker v. Meeker, 74 Iowa 352, 37 N.W. 773; Sim v. Russell, 90 Iowa 656, 57 N.W. 601; Denning v. Butcher, 91 Iowa 425, 59 N.W. 69. Before, however, he could give his opinion, he must testify to such facts as would show his competency to express an opinion. State v. Stickley, 41 Iowa 232; Parsons v. Parsons, 66 Iowa 754, 21 N.W. 570; Denning v. Butcher, supra. In the case last cited we held that, after the nonexpert witness stated the facts upon which or from which he proposed to give his opinion, it was for the trial court to say, in the exercise of a sound legal discretion, whether the witness had shown himself qualified to give an opinion. In view of these rules, which are not disputed, was there error in the court's ruling? It may be proper to set out a few of the questions ruled upon, viz.: First. "Now, I will ask you as to anything...
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