In re Ring's Estate, Nos. 46791

• Court: United States State Supreme Court of Iowa
• Writing for the Court: MILLER
• Citation: 237 Iowa 953,22 N.W.2d 777
• Parties: In re RING'S ESTATE.
• Decision Date: 07 May 1946
• Docket Number: 46867.,Nos. 46791

237 Iowa 953
22 N.W.2d 777

In re RING'S ESTATE.

Nos. 46791, 46867.

Supreme Court of Iowa.

May 7, 1946.

Appeal from District Court, Jasper County; J. G. Patterson, Judge.

Will contest on the grounds of undue influence and lack of testamentary capacity. The trial court directed a verdict for the proponent. Contestant appeals.

Reversed and remanded.

Campbell & Campbell, of Newton, for appellant.

Tomasek & Vogel, of Grinnell, for appellee.

MILLER, Justice.

On June 4, 1944, Thomas S. Ring died. He was a resident of Jasper County, Iowa. Two days later his will was filed for probate. The will was executed April 5, 1933. After providing for the payment of debts, it devised $500 to the Sacred Heart Catholic Church of Newton; $25 and $30 for masses for the repose of testator's soul; $12 for masses for the repose of the soul of his brother, William Ring; $100 for perpetual upkeep of testator's grave; $200 to The Fenwick and the Boys' Home of Cincinnati, Ohio, a Catholic institution; $200 to the Central Association of the Miraculous Medal, Germantown, Pennsylvania; $200 to the St. Francis Hospital, Grinnell, Iowa. The residue of the estate was devised sixty per cent to Father Flannigan's Boys' Home, Omaha, Nebraska, and forty per cent to

[22 N.W.2d 778]

the Catholic Extension Society, Chicago, Illinois. Testator's brother, A. J. Ring, was nominated as executor and filed the will for probate.

Objections to the probate of the will were filed by Mary Ring Kelly, surviving sister of the testator, on the grounds that decedent was of unsound mind, incapable of making a will, and that the purported will was procured by fraud, duress, and undue influence of A. J. Ring. The objections were controverted by the proponent, A. J. Ring. Trial was had to a jury. At the close of contestant's evidence, the court sustained proponent's motion for a directed verdict both as to the issue of testamentary capacity and that of fraud, duress, and undue influence. Judgment was entered accordingly from which the contestant appeals to this court.

Subsequent to the perfecting of the appeal as aforesaid, the contestant filed a petition for a new trial, pursuant to the provisions of Rules 252 and 253 of the Rules of Civil Procedure, which asserted that, following the trial herein, Andrew J. Ring, the proponent, died on November 28, 1945; on December 3, 1945, his will was filed and on December 10, 1945, it was admitted to probate; it was signed on the same date as that of Thomas S. Ring, to wit, April 5, 1933, was witnessed by the same parties, whose names appeared in the same order as on the alleged will of Thomas S. Ring, and substantially the same disposition was made of his property by Andrew J. Ring as that made by Thomas S. Ring; that such newly discovered evidence is most persuasive to show undue influence on the part of Andrew J. Ring; that contestant used all due diligence to discover the evidence but did not learn thereof until December 3, 1945. Trial was had on the petition for new trial. The court determined that the newly discovered evidence would be insufficient to justify the submission of the issue of undue influence to a jury and denied a new trial. Contestant appealed from such ruling and the proceedings on such appeal have been consolidated in this court with those involving the will contest.

I. While several questions are presented by this appeal, the decisive issue would appear to be whether the court erred in sustaining proponent's motion for a directed verdict on the issue of testamentary capacity. Obviously, a decision of this question requires a very extensive review of the evidence introduced at the trial.

Tom Ring was a bachelor. The only members of his immediate family who survived him were his brother, Andrew J. Ring, the proponent, and his sister, Mary Ring Kelly, the contestant. Two other brothers and his parents predeceased him. Mary Ring lived on the Ring farm with her parents and her brothers until she married in 1894, when she and her husband moved to Greencastle. Thereafter she frequently visited her brothers on the farm. After the death of the parents, Tom Ring, Andrew Ring, and their brother John, lived on the farm. From 1899 to 1916, Mrs. Nellie Cain was their housekeeper on the farm. During this time, about 1906, Tom Ring was taken to St. John's Mercy Hospital at Davenport, Iowa, and from there to St. Bernard's Hospital at Council Bluffs. He received mental treatment. About a year transpired during which he was at one or the other institution. From 1908 to 1926, Tom and Andrew Ring lived on the farm. In 1926 and 1927, the farm was operated by a tenant and Tom and Andrew lived at Kellogg. Thereafter, they returned to the farm and lived upon it until 1936. They were living on the farm on April 5, 1933, when both executed wills substantially identical as to their provisions. About 1940, Tom Ring entered the Jasper County Home and lived there the remainder of his life. While he was at the County Home, Tom Ring suffered from Parkinson's Disease, or paralysis agitans, or shaking palsy, a physical disease, which usually afflicts people past thirty-five years of age. Immediately before his death, it was necessary to perform an operation for the removal of his prostate gland. He died thirty-six hours after the operation.

Contestant's first witness was Charlie Butcher. At the time of trial, he was custodian of the Jasper County Bank and constable of Newton Township. He was the tenant who farmed the Ring farms in 1926 and 1927, while Tom and Andrew

[22 N.W.2d 779]

Ring lived in Kellogg. The Ring brothers were at the farm nearly every day. Butcher testified that Tom Ring used to stay at the farm sometimes for two or three days at a time, usually when Andy was going somewhere; Andy looked after the business; Tom never at any time said anything to Butcher about the renting of the farm; Tom was very unkempt and was hardly able to take care of himself; he was very quiet, never said anything unless you spoke to him; if you spoke to him he generally said ‘yes' to whatever the question was; he did not walk in an upright manner but walked with a stoop, looking at the ground, and with a shuffle; he was always talking to himself as he walked; in the house, he would sit in a chair and not say anything all evening unless you spoke to him; sometimes he would pick up a newspaper and read it, or pretend to; his mouth drooped and he had a far-away look in his eyes; he usually was unshaven unless it was Sunday when he was going to church; Butcher could not say that he ever saw Tom smile; did not think there ever was a change of expression on his face; if you spoke to him, he did not look at you, hardly ever looked up off the ground; he would always look away from you; it was difficult to understand what he said; he never said but a few words at any time; he used to be talking to himself and there were very few words that you could understand; sometimes Butcher would ask him what he said and then he would stop talking, but he would jabber continuously when he was sitting in the room; he used profanity quite a bit; at meals, he would wait until they asked the blessing and then he would start to eat and did not have any table manners; on one occasion they had canned salmon and Tom reached for the plate and took it all; Tom chewed tobacco all the time; it ran out the side of his mouth onto his clothes; Andy brought his tobacco to him; Tom did little work about the farm; he might carry a few ears of corn or go after the cows; Tom never said anything about religion or the church; he did not mention any of the Catholic organizations to Butcher; he talked about his relatives and carried a letter from Australia, dated somewhere in the 80's which he said was from a cousin or aunt; Tom never said a complete sentence that Butcher could understand; he never talked to Butcher or said anything in Butcher's presence about business; Butcher testified that in his opinion Tom Ring was definitely of unsound mind.

On cross-examination, Butcher testified that Tom knew his brother and his sister, never got lost, knew the farm that he had an interest in. Butcher stated that he considered Tom of unsound mind because of the fact that he sat all evening with the same piece of paper in his hand; was unshaven except on Sunday; always looked at the ground; had no interest in anything else around the place except looking on the ground; kept using the same profane expressions all the time; did very little work; did not transact business. He did not base his opinion of unsoundness of mind upon any one thing, but upon his general association with him.

Mrs. Nellie Cain testified that she kept house for the Ring brothers from 1899 to 1916. After she quit working there, she met Tom Ring only to pass him on the street or at church. From 1916 she saw him when she would come to visit from Davenport and attend church about once a year. She testified that, on the day Tom was taken to Davenport in 1906, he went out into the cornfield to plow corn; he would drive part way down the field, turn around and come back; finally he tied his team to the fence, came into the house and went to the telephone; she went into the house and, as she did so, he went out the front door, ran down the road to the Atwood farm and telephoned from there; Father Tracy and Dr. C. C. Smead came out to the farm; Dr. Smead told them to put everything, knives, etc., where Tom could not get hold of them; they got Tom ready and took him to Davenport to St. John's Mercy Hospital; he was not there very long; they brought him home and took him to St. Bernard's Hospital at Council Bluffs, a Catholic hospital for mental people; he was there all that winter; he ran away from St. Bernard's and came home, riding a train on blind baggage; he was home only a short time when they took him back; from the time

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they first took him to Davenport until he finally came home, must have been a year; he was a...