In re Jahn's Will

• Decision Date: 17 October 1922
• Docket Number: 34198
• Citation: 189 N.W. 974,195 Iowa 74
• Parties: IN RE WILL OF CLAUS JAHN. v. EMILIE JAHN MACMURTRY, Appellee HENRY N. JAHN, Appellant,
• Court: Iowa Supreme Court

189 N.W. 974

195 Iowa 74

IN RE WILL OF CLAUS JAHN.

HENRY N. JAHN, Appellant, v. EMILIE JAHN MACMURTRY, Appellee

No. 34198

Supreme Court of Iowa, Des Moines

October 17, 1922

REHEARING DENIED JANUARY 20, 1923.

Appeal from Crawford District Court.--E. G. ALBERT, Judge.

APPEAL from a judgment denying a will to probate. The facts are stated in the opinion.

Affirmed.

Sims & Kuehnle, for appellant.

L. H Salinger and Conner & Powers, for appellee.

STEVENS C. J. EVANS, ARTHUR, and FAVILLE, JJ., concur.

OPINION

STEVENS, C. J.

I.

This is a contest over the admission to probate of the last will and testament of Claus Jahn. The will was offered for probate by Henry N. Jahn, a son of the testator's, who was named as executor in the will. Objections to the admission of the will to probate were filed by Emilie Jahn MacMurtry, the only living daughter of the testator. The objections filed allege testamentary incapacity and undue influence alleged to have been practiced upon the testator by Henry N. and William L. Jahn, his sons, and the principal beneficiaries of the will. Both issues were submitted to the jury, and found in favor of the contestant. The proponent, Henry N. Jahn, appeals. The insufficiency of the evidence to justify the submission of the issues to the jury, and certain alleged errors in the court's charge, constitute the propositions relied upon by appellant for reversal.

The will was executed December 12, 1914; and, after giving $ 500 to the contestant and some city lots to Henry N. Jahn, gives the residue of the estate, share and share alike, to him and his brother. The testator was 80 years of age at the time the will was executed. Claus Jahn, when a young man, came to the United States from Germany, where he was born, and, after living in different places in Iowa, settled on a farm in Crawford County in 1869, where he resided until 1894, when he moved to Manilla, Iowa. He was married before going to Crawford County, but his wife died about 1890. His family consisted of two sons, the daughter named above, and an older daughter, Anna, who died June 14, 1913, at his home in Manilla.

Mr. Jahn appears to have been prosperous, as he acquired 400 acres of land, and owned a residence in Manilla. The record does not show what, if any, other property was owned by him. After the death of testator's wife, Will Jahn and contestant operated the home farm, each keeping one third of the profits earned, and paying one third of the profits to the father. Henry and Anna lived on and operated another farm owned by testator, about a mile and a half from the home place, under a like arrangement with the father. After the removal of the family to Manilla, the brothers engaged in the stock and grain business, the sisters joining, under an arrangement to share profits equally with the brothers. Will and Henry married a few years later, when the business arrangement between them and their sisters was dissolved. Contestant, except during short intervals, when absent on a vacation or for the health of herself and her sister, resided with her father until November 23, 1914.

The following dates and events are given much significance by counsel in argument, and we set them out at this time for convenience. Contestant and her sister Anna left Manilla on June 5, 1912, going to Colorado and California, ostensibly for their health, returning October 25th following. They again left Manilla on December 17, 1912, returning to Crawford County, but going to Denison, February 6 or 7, 1913, where they remained at a residence where they secured rooms, until March 29, 1913, when they returned to their father's home at Manilla. As stated, Anna died June 14, 1913. On November 25, 1914, contestant was married to a former pastor, by the name of A. J. MacMurtry. On December 21, 1912, testator conveyed 160 acres of land to each of his sons.

The evidence on the issue of the testator's testamentary capacity on behalf of the contestant, briefly summarized, was, in substance, as follows: Testator was enfeebled with age; was afflicted with senile dementia; frequently had dizzy or fainting spells, during which he became unconscious for intervals of from a few minutes to, on one occasion, more than an hour; became untidy and forgetful; would frequently fall over backwards in the yard; upon one occasion became unconscious at the dinner table; would go to a cave on the premises in the night, where, on one occasion, he was sought and found by contestant in an unconscious condition. Testimony on her behalf shows that she called her brother and a doctor to assist her to care for him; that he would let the fire go out in his room until it became cold, or would not adjust the drafts so as to prevent the room from becoming overheated; that he so far lost control of his urine and bowels that it was necessary to place rubber sheeting upon his bed; that he frequently went to bed with all his clothes on, including his shoes; that he would urinate in the daytime in the dooryard, and, upon one occasion, urinated in the presence of his niece, who was a young lady; that in the summer time, he would put on his overcoat, overshoes, overalls, and winter cap, to go down town; that several time, when he met a neighbor whom he knew, and whose husband he knew to be dead, he would inquire of her about her husband; that he asked neighbors who had never been in Germany if they remembered his old friends in that country, and would talk to them in German, although he knew that they could not understand him, notwithstanding the fact that he could speak English; that he would repeatedly drive the chickens into the chicken house in the afternoon and shut them up; that, when playing cards, he would forget the trump; that he would get up in the night and strike matches and wander about his room; that he frequently went to the cave; and that he would bundle all his clothing up, put it in a sack, and set it at the foot of his bed at night, and, in the morning, would return it to its proper place.

The foregoing and other incidents of lesser importance constitute the direct evidence on behalf of contestant, bearing upon the issue of the alleged testamentary incapacity of testator. Most of the above facts were testified to by contestant. She was, however, corroborated by other witnesses as to several of them, and in other material respects.

Many witnesses were called by proponent who testified that they had know the testator for many years, and had never observed him manifest any symptoms of mental unsoundness or infirmity, except such as are commonly incident to old age. Direct testimony as to the ability of testator to transact business is confined almost entirely to the leasing of his farms, and small transactions such as the purchase of household necessities, and going to the post office for the mail. A banker with whom testator had done business for many years testified that he prepared leases for testator's farms, and transacted other business with him, and that he never noticed that he was forgetful or incapacitated to do business; and gave it as his opinion that testator was of sound mind. Other witnesses testified to the same effect. Medical experts, testifying in answer to hypothetical questions, expressed the opinion that he was of unsound mind. Other experts called by proponent gave testimony to the contrary.

There is no direct evidence that the execution of the will was the result of undue influence practiced upon the testator by his sons. The contestant, however, relies upon numerous incidents, some of which are more or less remote, to sustain this issue. The Jahn family, except the father, were members of the Presbyterian Church at Manilla. A. J. MacMurtry, at one time pastor of this church, left Manilla in 1905, and later became a lecturer. There appears to have been occasional correspondence between MacMurtry and different members of the Jahn family.

While contestant and her sister Anna were in Los Angeles on their first trip in 1912, they learned that the latter had a cancer in her breast. Contestant wrote to MacMurtry, who was living at Oakland, California, informing him of the serious character of Anna's illness, and asking for advice. MacMurtry answered the letter, saying that he would soon be in Los Angeles on business; and he did, shortly thereafter, visit the sisters at that place. He advised them to consult a physician whom he named, at Omaha. An arrangement was then or later made, as the result of which the sisters met MacMurtry at San Francisco, and came with him to Omaha, where the doctor was consulted, and an operation performed upon Anna. On the second trip west, in December, 1912, the sisters were accompanied by MacMurtry from Omaha, who went to Canon City, and they to Pueblo, to visit some friends. Unable to locate their friends, they also went to Canon City, where they remained for some weeks. During part or all of the time they were in Canon City, they and MacMurtry lived in a rooming house, ate their meals together, and shared the expense of the meals equally. They occupied separate apartments, however. When the sisters returned to Crawford County, going to Denison in February, 1913, they were accompanied by MacMurtry.

Some time prior to August 28, 1913, MacMurtry commenced a suit against his wife at Oakland, California, for a divorce. An interlocutory decree, upon the cross-petition of the wife was entered in the divorce action on the above date, and a final decree November 23, 1914, two days before contestant and MacMurtry were married, in Omaha. The sisters loaned MacMurtry $ 3,000 with which to pay alimony to his wife. Although he gave them a note for the amount, it has not been paid. An attorney by the name of Moore, who resided in Manilla, went...