In re Heller's Estate

• Decision Date: 16 November 1943
• Docket Number: 46365.
• Citation: 11 N.W.2d 586,233 Iowa 1356
• Parties: In re HELLER'S ESTATE. HELLER v. RIPPERGER.
• Court: Iowa Supreme Court

11 N.W.2d 586

233 Iowa 1356

In re HELLER'S ESTATE.

HELLER v. RIPPERGER.

No. 46365.

Supreme Court of Iowa

November 16, 1943

Howard L. Bump, of Des Moines, and S. E. Prall and J. O. Watson, both of Indianola, for appellant.

O M. Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, and J. B. Wilson, of Indianola, for appellee.

BLISS Justice.

The last will of Leo Heller, deceased, was executed on May 19, 1941. He died at the age of about fifty-seven years, on August 31 1942, in Warren County, Iowa, where he had resided for many years, leaving neither widow nor child, but the contestants Frank Heller, brother, Loretta Ohnemus, Edward Heller, and Cecil Heller, the children of a deceased brother, August, as his next of kin and sole heirs. By his will, he gave all of his property, subject to the payment of his debts, sickness and burial expense, and costs of administration, to Gerald John Ripperger, named as executor in the will, and Vitus Charles Ripperger, to be shared equally by them. These beneficiaries were brothers, and not related by blood or marriage to the testator, but they had worked as laborers on his farm for several years. In the will the testator stated "*** that I am giving said property to the said devisees and legatees for the reason that I have no children of my own and both have worked for me for some time and both have been very kind to me."

Upon the filing of a petition for the probate of the will by the appellee, the contestants filed objections thereto. These objections, though variously stated, are: (1) The testator lacked testamentary capacity; (2) the execution of the will was induced by the undue influence of the beneficiaries; and (3) the will was not properly executed.

On motion of the appellee, at the close of all of the testimony, the court withdrew from the consideration of the jury, objections (2) and (3) above noted. In sustaining appellee's motion to direct a verdict the court said: "The Court is of the opinion there is not sufficient evidence in this record which would warrant submitting to you, as jurors, the question of whether or not Heller was competent at the time the will was executed. Under the record there must be evidence to warrant reasonable persons to say that, at the time in question, Mr. Heller was mentally incompetent, and did not know the amount of his property, and did not realize those who were the natural objects of his bounty. *** the Court is of the opinion the only thing in the record is, Mr. Heller was an excessive user of intoxicating liquors. The record does not show that at the time the Will was executed, or within any close proximate time to the time of the execution of the Will that Mr. Heller was intoxicated. Most of this evidence goes from the year 1934 down to and including 1940-a few scattered instances in 1941. For that reason, the Court is withdrawing from your consideration, and will ask this gentleman to sign this verdict under the direction of the Court."

While the contestants, as one objection to the probate of the will, alleged that the testator was intoxicated at the time of its execution, there was no evidence even tending to support the allegation, and the real theory of appellant's case is, not that the testator was intoxicated when he executed the will, but that years of excessive drinking of alcoholic liquors had so weakened and impaired his mind that he lacked mental capacity to make a testamentary disposition of his property on May 19, 1941, when the will was executed. The real question for determination is whether that issue should have been submitted to the jury.

Appellant assigns four errors, to wit: (1) In refusing to permit Mrs. August Heller to give her opinion that testator was of unsound mind when he made the will; (2) in refusing to permit Mary Wachter to give such an opinion; (3) in directing a verdict upon the ground that there was insufficient evidence of mental unsoundness when the will was executed; and (4) in withdrawing the issue of undue influence.

Some additional facts which bear upon the assigned errors should be stated. The parents of the testator had six sons, named, in the order of seniority, Frank (contestant), August, John, Fred, Joe and Leo. The last four were wifeless and childless. The father died in 1912 and the mother died in October, 1934. The unmarried boys all remained on the home farm until they died. Fred died about 1924, and Joe died on May 15, 1941, just four days before the will in controversy was executed. Mary Wachter began working in the home in September, 1934, while the mother was living and remained after her death until about March, 1935. She came back as housekeeper about December 1, 1935, and remained until the middle of June, 1938. The appellee was working on the farm, and living in a tenant house when she came, and remained thereafter. His brother Vitus began work in 1936 and lived in the main house. She testified: that Leo slept on a cot in the dining room after his mother died, and that he drank whiskey, alcohol, wine and beer and was intoxicated every day while she worked there; that he would go for days without undressing, sleeping with his clothes on; that he was unclean in his habits, went about the house, at times, indecently undressed; was abusive in language, and at times threatened the lives of those in the house. She saw him occasionally after she left during the remainder of 1938, once or twice in 1940, and two or three times in 1941-one of these times being at Joe's funeral and the other time about July 4th. She saw him once at Abbott's Hospital at Oskaloosa or Ottumwa about July 5, 1942. She testified that Leo came to her home some time late in 1938 when he was drunk, but she gave no testimony as to his drinking in 1939, 1940, 1941 or 1942.

The appellant, Frank Heller, gave no testimony which aided the contestants in any way. The contestant, Edward Heller, testified that he was at his grandmother's place in 1933 and 1934, both before and after her death, and that Leo Heller was drinking lots of times when he was there. The other two contestants did not testify.

Mrs. August Heller, whose husband died January 1, 1938, and whose children are contesting, testified that she and her husband lived but a few miles from the home place, and that before the mother died she often was there to help her, and for social visits. Before the mother died she would see Leo three or four or more times a week, but after that she did not go there so much. She testified that she had seen liquor in the house and had seen Leo "when he was very much under the influence of it. On Easter Day in April, 1939, I saw Leo Heller laying there looking like a very sick man on a cot. Doctor Taylor was called and we took Leo to Hill's Retreat, a hospital in Des Moines." He was at the hospital about a month. The treatment he received or the nature of the hospital is not disclosed in the record. About a year before Joe's death, Leo, apparently had been drinking, and was taken out of the church because of the disturbance he was making. The witness heard him but did not see him on this occasion. In March, 1940, he was in Abbott's Hospital in Oskaloosa, where she saw him after he had been there about two weeks, and saw him a second time before he left the hospital. She testified: "We just visited as any body would. I asked him how he was and he told me several things that I thought was a little queer. One thing he told me, I asked him if he had been out of the hospital, and he said yes. He also told me about several persons being to see him that I wondered about." There is nothing in the record to indicate that what he told her was not the truth. With the exception of the church incident and the two times the witness saw Leo in the Oskaloosa Hospital, she said she never saw him very much at any other time. There is no evidence that she saw him intoxicated, or even saw him, within months of the time the will was made.

Dr. Abbott, a physician and surgeon, seventy-four years old, operated a hospital of some kind at Oskaloosa. He treated mental cases most of which were afflicted with alcoholism. He testified that: Heller entered the hospital on March 8, 1940; he had a pain and stiffness in his right shoulder for six weeks; his lungs were congested; he had an awful cough since Christmas; he had a temperature of ninety-nine, which reached one hundred the next day; he had a very high pulse of 102; he had the flu and was threatened with pneumonia and was put in a pneumonia jacket; he had an infection of his gall bladder, infection of his teeth and frontal sinuses; he had a streptococcic infection; he had five thousand units of intestinal flu affecting his bronchial tubes and lungs; he was very feeble; he had been drinking heavily; he was very delirious and became more so, for two or three days and talked a great deal and didn't know where he was; high temperature might cause delirium. He was given alcohol for two days and none thereafter. He was given the liquor cure, and gradually improved and was up and around the hospital. He shaved himself on March 26th, and left the hospital April 15th and paid his bill. At this time the doctor said he was not completely cured. Over objection the doctor diagnosed his condition as alcoholic delirium when he entered the hospital. The witness was asked whether Heller was sound of mind or unsound. Over objection that the question was inadmissible because it referred to a time too far removed from the execution of the will, the witness answered: "Judging from the things he did and said, I would say he was unsound of mind." Over a like objection to an inquiry as to whether Heller had sufficient mental capacity to comprehend what property he had, the witness answered: "No. His...