In re Will of Knox

• Decision Date: 01 February 1904
• Parties: IN RE WILL OF JOHN KNOX, Deceased, v. JOHN KNOX, JR., et al., Contestants, Appellants MARGARET PAXTON, et al., Proponents, Appellees,
• Court: Iowa Supreme Court

98 N.W. 468

123 Iowa 24

IN RE WILL OF JOHN KNOX, Deceased,

MARGARET PAXTON, et al., Proponents, Appellees, v. JOHN KNOX, JR., et al., Contestants, Appellants

Supreme Court of Iowa, Des Moines

February 1, 1904

Appeal from Mahaska District Court.--HON. JOHN T. SCOTT, Judge.

THIS proceeding was instituted to contest the probate of an instrument purporting to be the last will and testament of John Knox. There was a jury trial, and verdict in favor of the proponents. From an order made admitting the instrument to probate, the contestants appeal.

Reversed.

L. C Blanchard, F. D. Reid, and McCoy & McCoy for appellants.

Seevers & Malcolm, J. F. & W. R. Lacey, and A. E. Clevenger for appellees.

OPINION

BISHOP, J.

The only ground of contest is that the testator was of unsound mind at the time of the execution of the instrument presented. The testator died in January, 1901, at the age of seventy-six years. He had been twice married. By his first wife, from whom he was divorced in the year 1865, he had four children, one of whom died while in youth, and the other three are the contestants in this proceeding. In the year 1883, and before the execution of the will proposed, he married a childless widow. She died some years afterward, and previous to his death. There were no children as the result of the second marriage. The will proposed bears date November, 1883, and gives to each of his children by his first wife the sum of $ 5. All the balance of his estate is given to his wife. The proponents of the will are the heirs at law of the deceased wife.

I. During the trial a medical witness called by the contestants was asked on cross-examination his opinion "as to the sanity of a man in 1883 who in 1880 was able to sit as a juryman in seven trials during a single term of court, and this without any evidence of mental disease." The question was objected to, and, after a somewhat entended colloquy between counsel and the court, counsel for proponents said: "I propose to ask him now if it is his professional opinion that a man can do that." Court "I will take it for granted that there are a number of these jurors who will know that fact, and the objection is sustained. If a man is competent to sit on seven trials at a term of court, we will take it, I presume, that he is of sound mind." Counsel for Proponents: "This case might just as well stop now, because we will show that." Court: "That ought not to be stated. It is time enough for that to be stated in the usual manner--in the proper way." Counsel for proponents: "I was just confirming what the court said." Court: "I was simply speaking about what would be the effect of that kind of testimony." Subsequently the proponents introduced evidence to the effect that during the months of December 1879, and January, 1880, John Knox did serve as a juryman in seven different cases in the Mahaska district court. That the remarks made by the court, as quoted above, were prejudicial in character, we have no doubt. It was the theory of contestants, and evidence had been introduced tending to prove, that Knox was afflicted with insanity as early as the year 1875; that the disease in his case was progressive, chronic, and permanent. Now, the remarks of the court complained of were made in the presence and hearing of the jury, and therefrom the jury may very well have reached the conclusion that, if jury service on the part of Knox was shown as claimed, from the viewpoint of the court, at least, such would be sufficient to establish sanity as of the time the jury service was rendered. That the fact of jury service was proper matter to be considered may be readily conceded, but that such fact was conclusive of sanity cannot be true, either in reason or as resting on authority. It is a well-known fact that jurors are apt to attach great importance to statements made by the court during the trial of a case. Such statements frequently have the same weight and are as potent in influence as though embodied in a written instruction. Shakman v. Potter, 98 Iowa 61, 66 N.W. 1045. So, too, we think that the prejudice arising out of the statements thus complained of was accentuated by the error of the court--for such we hold it to have been, under the circumstances--in subsequently refusing to allow contestants to prove what had been the conduct of Knox during the time he was serving as a juryman.

II. W. R. Lacey, one of the attorneys for proponents, was called as a witness on behalf of his clients. He testified that he had drawn the instrument now offered for probate. He was then permitted--and this over the objection of contestants--to detail the conversation had by him with the testator at the time the instrument was drawn. Such evidence was properly received, as we think. It was proper to be considered by the jury as bearing directly upon the question of the mental condition of the testator at the time thereof. As the witness was subsequently asked to express an opinion as to the mental soundness of testator, basing the same upon the facts testified to by him, the jury was also entitled to take the evidence of the witness as to the conversation detailed by him into consideration, in determining what, if any, weight should be attached to the opinion expressed. But it may be said in passing--and the importance thereof will presently appear--that the evidence relating to such conversation was neither material nor competent for any other purpose. It certainly could not be received as even tending to establish as an evidentiary fact in the case on trial any matter of fact asserted, or any circumstance referred to by the testator during the course of such conversation. The sole question at issue was the sanity of the testator. As related to the conversation detailed by the witness, the sole question was, did the testator speak and conduct himself as one at the time in possession of his mental faculties?

III. The contestants complain of the twenty-first instruction. It is as follows: "The fact that a short time before the execution of the proposed will the wife of the testator conveyed all her property to him, and that testator at the time of the execution of the proposed will stated to the party who drew the will that his wife had deeded to him all her property, and in consideration therefor he had promised to will her all his property--This, you...