In re Will of Norman

• Decision Date: 21 June 1887
• Citation: 72 Iowa 84,33 N.W. 374
• Parties: IN RE WILL OF NORMAN.
• Court: Iowa Supreme Court

72 Iowa 84

33 N.W. 374

IN RE WILL OF NORMAN.

Supreme Court of Iowa.

June 21, 1887.

Appeal from circuit court, Jasper county.

Mary Norman executed a will by which she bequeathed a life-estate in certain real estate to her husband, O. P. Norman, with remainder to C. R. Graham and Patrick Shea. She died a few days after the execution of the will. At the time fixed for proving the will the husband appeared, and contested on the ground that the testatrix, at the time it was signed, was of unsound mind, and incapable of making a will, and that she executed the instrument under undue influence. The issue was tried to the court without the intervention of a jury, and the court found that the testatrix was of unsound mind, and incapable of executing a will, when she signed the instrument, and refused to admit it to probate. The proponents appealed.Clement & Ward and Winslow & Varnum, for appellants.

L. A. Williams and Harrah & Myers, for appellee.

REED, J.

As the court based the order refusing to admit the will to probate on the finding that the testatrix, at the time she signed the instrument, was incapable, owing to unsoundness of mind, of executing a will, we will assume (although the judgment record is silent on the subject) that it found against the contestant on the other ground alleged. We will not, therefore, consider those errors assigned which relate to rulings made upon questions arising upon the trial of that issue; for, as the finding of the court is assumed to have been in favor of the proponents on that issue, they were not prejudiced by the rulings, even though they should be found to be erroneous.

The testatrix was about 68 years old when the will was executed. For many years before her death she and her husband had lived a secluded life upon a small farm in Jasper county, having but little intercourse with their neighbors. She appears to have been very eccentric in her conduct, and of a somewhat miserly disposition. She had no children, and no living relatives except a brother, with whom she had had no communication for many years; and she had a strong aversion to the relatives of her husband. She died of heart disease, which caused dropsy. The disease was probably of long standing, but she was not regarded as in a specially dangerous condition until about a week before her death. Although some of her previous eccentricities were shown, it is not claimed that she was then insane, or that her testamentary capacity was destroyed before her last severe sickness set in. It is shown that at times during this sickness she was “flighty” and irrational, sometimes lying in a stupor or semi-comatose condition. At other times she appeared to be rational, and talked intelligently about her condition and her household affairs and business. It was during this sickness that the will was executed.

1. A witness who had known the testatrix for many years, and who was with her frequently during her last sickness, and assisted in nursing and caring for her, was asked whether she noticed any difference in her mental condition during that time from what it had been before that, and, having answered that she did, she was then asked what noticeable difference there was in her condition at that time from what it had formerly been, and in answer to that question she pointed out the respects in which she appeared to be different. The witness also gave it as her opinion, based upon the facts she had detailed, that the testatrix was of unsound mind during the period of her last sickness. These questions and answers were objected to by the proponents, on the ground of incompetency, and the overruling of this objection is assigned as error.

Counsel admit that the settled rule in this state is that a witness not an expert (to which class the witness in question belongs) may express an opinion as to the sanity or insanity of another, having first detailed the facts and circumstances upon which the opinion is formed. They contend, however, that as the inquiry is as to the sanity of the testatrix at a particular time, viz., during her last sickness, the opinion could be formed only from the observation of the witness during that time, and that she could not be permitted to consider, in forming her opinion, any circumstances or fact which happened previous to that, and at a time when the subject was confessedly sane.

But we are of the opinion...