In re Will of Mary Ames

• Decision Date: 18 September 1878
• Citation: 2 N.W. 408,51 Iowa 596
• Parties: IN THE MATTER OF THE WILL OF MARY AMES
• Court: Iowa Supreme Court

2 N.W. 408

51 Iowa 596

IN THE MATTER OF THE WILL OF MARY AMES

Supreme Court of Iowa, Des Moines

September 18, 1878

Appeal from Clinton Circuit Court.

ON the 13th day of February, 1877, an instrument in writing purporting to be the last will and testament of Mary Ames deceased, was filed in the office of the clerk of the Clinton Circuit Court, and at the same time George W. Ames, the executor, filed his petition, asking that a day be fixed for proving the same, and that upon the final hearing said will be allowed and recorded as the last will of said deceased and that he be commissioned as said executor. On the 21st day of September, 1877, the appellees, Adaline Blades, Philena Ryner, Louisa Johnson and Susan Routzong, filed their caveat contesting the admitting of the will to probate, and alleging that the same was obtained by the undue influence, importunities and fraud of John Hall, George W Ames and Mary C. Crowley, children of the said Mary Ames, and devisees under said alleged will; and that, at the time of the execution of said instrument, the said Mary Ames did not possess sufficient mental capacity to make a will by reason of old age and mental aberration.

The cause was tried to a jury, upon interrogatories submitted to them, and the following verdict was returned:

"Was the testatrix, Mary Ames, of sound mind at the time of the execution of the instrument purporting to be her last will?" Answer. "Yes."

"Was the will of the said Mary Ames, in controversy, procured by undue influence exercised by John Hall, George W. Ames, or Mary C. Crowley, or either of them?" Ans. "Yes."

The motion for new trial was overruled, and judgment was entered denying the probate of the will. The executor appeals.

REVERSED.

Merrell & Howat and A. R. Cotton, for appellant.

Cotton & Wolfe and W. A. Foster, for appellees.

OPINION

DAY, J.

At the time of the death of the testatrix, Mary Ames, the following named persons were her heirs, to-wit: Mary Philibut and John Hall, children by her first marriage; Dolly Ordway and John Philibut, grandchildren of the testatrix, and children of Harriet Philibut, a daughter of the testatrix by her first marriage; Philena Ryner, Adaline Blades, Louisa Johnson, Susan Routzong, George W. Ames and Mary C. Crowley, children of the testatrix by her marriage with George W. Ames, deceased. These persons were all legatees in the will in controversy, their several legacies being as follows: Mary Philibut, one thousand dollars; Dolly Ordway and John Philibut, five hundred dollars each; Philena Ryner, Adaline Blades, Louisa Johnson and Susan Routzong, five hundred dollars each; John Hall, George W. Ames and Mary C. Crowley, the residue of the estate, subject to the payment of the debts of the deceased and the foregoing legacies. Except George W. Ames, the executor named in the will, petitioning for its probate, and Philena Ryner, Adaline Blades, Louisa Johnson and Susan Routzong, heirs at law and legatees of the deceased, resisting the probate of the will, none of the heirs at law and legatees are parties to this controversy.

I. John W. Blades, a grandson of the testatrix, informed John Hall, in California, of the supposed provisions of a will executed by the testatrix prior to the execution of the will in controversy, and was permitted, against the objection of the executor, to testify to the following declarations of John Hall: "He said he thought that the rest of the children all had a right to have an equal portion, and him among them; he said if he had the means he would go back and have the thing changed; he said he felt as though he could talk to the old lady to make it different if he could get to see her; he did not know how he could get the money to come back; he thought it had been so long since he had seen his mother she would listen to him a little more than the rest of them; he said he thought Miss Johnson and Mrs. Crowley had no more right to it than he or the rest of the girls; he said he did not propose to let them get ahead of him; he said he would go back and see his mother and get the will changed; he said it would be better for me and the rest of the grandchildren if he could go back; he told me to keep still and say nothing about it, and not write to the folks that he was coming; he wanted to see his mother and have it fixed before any of the girls knew he was there."

George B. Blades, against the objection of the executor, testified as to the declarations of John Hall as follows: "He said it should not stand that way; that if he met Mr. Ames he would have revenge, or he would take his blood, or something like that."

Louisa Johnson, against the objection of the executor, referring to John Hall, was permitted to testify as follows: "He spoke about mother not being exactly right, and being childish; he said mother was perfectly childish. * * * Said he, for instance, 'she undertook to relate circumstances that happened when I was at home, and she gets different things mixed up, and I don't think mother is exactly right; she has changed wonderfully since I saw her; mother ain't like herself any more at all.'"

Louisa Johnson also testified as follows as to the statements of Mary C. Crowley: "At one time I was up there and she was talking about she was going to have her mother--that is the way she spoke it--make her will. That was, she said, 'I am going to have mother make her will.' I would not now say whether she said 'Madame Adaline' or 'Madame Blades' and 'Madame Ryner shall be cut mighty short; they shall not have a cent more than the law allows them.'"

All these declarations were made before the will in controversy was executed. The contestants were also permitted to prove that John Hall, after the execution of the will, said that he had accomplished his desire--that he had the will changed.

The appellant assigns the admission of all of this evidence as error. First. The declarations made before the execution of the will are, we think, clearly inadmissible. The only ground upon which it can be held that declarations of one not a party to the record are admissible in evidence, is that the declaration was at the time it was made against the interest of the party making it, and, therefore, presumably true. Before the execution of the will these declarants could not have anticipated that a will would be made which it would be against their interests to have defeated. As we understand the authorities cited by appellee, none of them sustains the proposition that a declaration made before the execution of a will, by one who afterward becomes a legatee but who is not a party to the litigation, may be admitted to affect the validity of the will against other legatees not parties to the suit who are interested in sustaining it.

In Benton v. Scott, 3 Rand. 399 (407), respecting the admissibility of a declaration of Mrs. Scott, the following language is employed: "The true meaning and sense of the rule that the declarations of parties may be given in evidence against them, is the reasonable presumption that no person will make any declaration against his interest unless it be founded in truth. Testing the question by this criterion, the declarations of Mrs. Scott, made before the will, cannot be given in evidence, for it is the will which gives existence to her interest. Before its date she could not know that she would be left a penny; she could not know that it would not be so written as to oblige her to renounce it, and fly to the law for her support. She had not then that motive so powerful as to afford a safe guarantee that she would make no declaration as to the incapacity of her husband which was not founded in truth; and her declarations, wanting the essential quality to make them evidence, were properly excluded."

The same doctrine was announced in Thompson v. Thompson 13 Ohio St. 356 (363). The court erred in admitting the declarations of John Hall and Mrs. Crowley, made before the execution of the will. Second, as to the declaration of John Hall after the execution of the will. There is, upon this question, a conflict of authority. In support of the admissibility of such evidence the appellee cites Beall v. Cunningham, 40 Ky. 399, 1 B. Mon. 399; Rogers v. Rogers, 2 B. Mon. 324; and Brown v. Moore, 14 Tenn. 272, 6 Yer. 272. These cases support the position of appellee, and, so far as we have discovered, they are the only ones which do so. The two cases...