In re Kah's Estate

• Decision Date: 24 October 1907
• Citation: 113 N.W. 563,136 Iowa 116
• Parties: IN RE KAH'S ESTATE.
• Court: Iowa Supreme Court

136 Iowa 116

113 N.W. 563

IN RE KAH'S ESTATE.

Supreme Court of Iowa.

Oct. 24, 1907.

Appeal from District Court, Wayne County; H. M. Towner, Judge.

In a proceeding for the probate of the will of Mary M. Kah, offered for probate by A. M. McDonald and wife and John Krause and wife, devisees and legatees under the will, the respective wives being the daughters of the last husband of testatrix by a former marriage, there was a contest by Maria L. Houston, a cousin of the testatrix, and her heirs, on the ground that testatrix was of unsound mind when the will was executed, and that said will was procured by undue influence and fraud of said devisees. On the issues raised by this contest there was a verdict for the proponents, and from the judgment that the will be admitted to probate the contestant appeals. Affirmed.Livingston & Son, for appellant.

R. C. Poston and Miles & Steele, for appellees.

McCLAIN, J.

1. On the issue as to undue influence the court instructed the jury that if they found the testatrix, at the time of the execution of the will, to have been of weak mind as the result of sickness, trouble, or grief, so as to be easily imposed upon and easily influenced, and if proof be shown of circumstances establishing undue influence, then the will should be set aside, and that it was not necessary to prove absolute imbecility or incompetency of mind to sustain such finding. Complaint is made of the instruction in which this language is used, on the ground that undue influence such as to authorize the setting aside of the will may be established without proof of mental unsoundness. But the allegation as to undue influence was that the will was executed by the testatrix when she was of unsound mind and suffering from illness, and under the absolute control and influence of the devisees. It is not claimed that there was error in the instruction, in so far as it referred to the effect of undue influence on the validity of the will, and there is nothing in the evidence to indicate the exercise of such undue influence as would have invalidated the will, had the testatrix been in the full possession of her mental faculties at the time the will was executed.

2. The court in several instructions explained to the jury the tests to be applied in determining whether the testatrix had sufficient capacity to make a will, and the correctness of these instructions as statements of the law is not questioned; but it is contended that the court emphasized throughout the considerations which might be taken into account in sustaining the will in this respect, without giving equal emphasis to the considerations suggested by the evidence for setting it aside. But, inasmuch as the whole question was one of mental capacity, we cannot see that any prejudice to the contestant resulted from indicating what was necessary in order to constitute such mental capacity as to require that the will be sustained. The repetition of instructions with reference to what it is necessary for a party to establish may be entirely proper, in order to make the matter plain to the jury. Buchholtz v. Radcliffe, 129 Iowa, 27, 105 N. W. 336. We cannot discover in the instruction asked for the contestant, which was refused, any suggestion bearing on the question of mental soundness which was not included in the instructions given. The refused instruction itself related to what is necessary to constitute a sound and disposing mind. In following the form of presentation suggested by the instruction asked, with such further detail as was proper under the evidence, we think the court committed no error of which contestant can complain.

3. The court allowed several witnesses called by the contestant to testify as to declarations of testatrix tending to show unfriendliness and dislike on her part toward the devisees and her intentions with reference to the disposition of her property, inconsistent with those found in the will, and instructed the jury that such statements might be considered as tending to show the condition of mind of the testatrix and as bearing on the issue of undue influence; but he used in the same connection the following language, of which contestant complains: “Care should, however, be taken in considering such evidence, and too great weight should not be given to it. A person may have a feeling and express it to others with regard to her likes or dislikes toward certain of her relatives, and with regard to her intention at that time as to the disposition of her property, and this feeling may change, and her purpose and intention change, and the law will not interfere with such change, but will give it legal force and sanction. Even where this has been...