In re Will of Kester
| Decision Date | 17 May 1918 |
| Docket Number | 31674 |
| Citation | 167 N.W. 614,183 Iowa 1336 |
| Parties | IN RE WILL OF MARY E. KESTER. PERRY SIMMONS, Appellee, v. WOMEN'S HOME MISSIONARY SOCIETY et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 27, 1918.
Appeal from Humboldt District Court.--N. J. LEE, Judge.
CONTESTANT objected to the probate of the will, on the ground of alleged undue influence and mental incapacity. The formal execution of the will was admitted. There was a trial to a jury. At the close of the evidence, contestant withdraw the issues as to the alleged undue influence. The jury found for the contestant, and proponents appeal.
Reversed.
Edith Prouty, Dunshee, Haines & Brody, and Samson & Steer, for appellants.
L. W Housel and Robert Healy, for appellee.
The point which appears to be most seriously argued and relied upon for a reversal is as to the sufficiency of the evidence to sustain the verdict. This question was properly raised by motions to direct a verdict, at the close of proponents' evidence and at the close of all the evidence; by motion for new trial, etc.
Other assignments of error are that the court erred in permitting witnesses to testify that deceased was of unsound mind on the day the will was executed, for the reason that the witnesses did not see deceased at that time; also in refusing to give an instruction requested by proponent.
1. We have carefully examined the record, and have come to the conclusion that, under our authorities, the evidence is not sufficient to sustain the verdict. We shall not set it out in detail, but will endeavor to set out the evidence as favorably to contestant as the record will justify, and refer to proponents' evidence in a still more general way. First, though, we may properly set out those facts about which there is little or no dispute.
The will was executed February 3, 1915. It appears that, at the time of her death, on April 21, 1915, testatrix was a widow, about 70 years of age, and childless. Her husband had died nearly 30 years before; she never had but one child, and it died in infancy; after her husband's death, she lived with her parents on a farm, until about ten years before her death, then moved to Humboldt, as she was not strong; about 28 years ago, she was visiting a cousin in Creston; complained of her head; she went to some faith healers, an old man and woman, who claimed they could cure her by divine power; she took a few treatments of them, and a brother of deceased testifies that she told him she had agreed to deed her property to them, if they would cure her and take care of her through her life; he claims that he prevented her from doing so. After that, and some years before her death, her brother testifies that she was assisting in a revival meeting at Sheldon, where she met a man whom she married on a short acquaintance--concededly a foolish marriage. This marriage was shortly annulled, because the man had another wife or wives living. Contestant contends that this man married her for her money; and that is undoubtedly true, but he did not succeed in obtaining it. Deceased died as a result of cancer of the stomach. Some years before her death, she had a cancer of the breast, which, with a part of the muscles of her arm, was removed. Before that, she had a cancer of the lip, which was cured by treatment, without an operation. About August, 1914, she began to complain that her foot or limb bothered her, and the difficulty increased until she was not able to go to church, after about the first of December, 1914. She went to Hot Springs, February 8, 1915, a few days after the will was executed, and was then suffering from what she supposed to be rheumatism, and perhaps some other troubles; she did not go to Hot Springs to be operated upon for cancer or anything of that kind; up to the time of her going away, she had not, at any time, been confined to her bed; she sat up in her chair most of the time,--a part of the time with her foot upon a chair.
At the time of the execution of the will, according to the testimony of her nurse, who was also the other subscribing witness to the will, deceased was thin and frail looking, and was not able to walk alone scarcely any of the time; complained of her head and limb; she was sleepless at night; her appetite was pretty good, usually; and deceased said she could not read any more; deceased asked witness to read Scriptures to her; this was the daily practice, twice every day; deceased forgot about her key to the bank box; said that one of the ministers came so often that he annoyed her, and that he was wanting money, and she asked the nurse to phone him and stop his coming, which was done; this was the day before she went to Hot Springs; deceased told her, after the will was made, that she had had her will made two or three times, and it didn't suit her yet, and she expected to have it changed, and that she could have it made again; deceased told her she had always intended to give the Dakota land to foreign missions, but keep her Clay County land; in talking, she would change the subject; deceased paid witness for her services in cash; she paid the medical expenses of the house through the nurse; gave witness a check to get money at the bank; talked of her property. Witness gives her opinion that deceased was of unsound mind.
Counsel for appellants strenuously insist that the testimony of this witness does not justify the expression of an opinion as to the mental condition of deceased, and they make the same claim as to other witnesses. However this may be as to the witness Mrs. Little, she was one of the subscribing witnesses to the will, and we think her testimony is at least weakened by that fact. Some of the cases hold that the legal effect of this is to assert the mental capacity of deceased, and affects the credibility of the witness. Sellars v. Sellars, 2 Heisk. 430, 432. Appellants offered an instruction on this point, which, or one of similar import, might well have been given.
Deceased's own brother, whose testimony we have before quoted, testifying as a witness for contestant, testifies that, up to the time the will was made, deceased was perfectly able to recognize all of her relatives; and that there never was a time, up to then, when she was so feeble that she did not know all of her friends and neighbors who came to call upon her.
She inherited the quarter section of land in Clay County, Iowa, from her husband. Some years before her death, she sold one 80 of this to her brother Thomas, a Methodist minister in Dakota. She had a piece of land in South Dakota; and, on the advice of a brother, she sold, and invested in North Dakota, and made $ 8.00 an acre on this. She reinvested in other Dakota land, which was not profitable, and her brother took it off her hands. The other half of the quarter section in Clay County she conveyed to the Women's Foreign Missionary Society, a corporation, at the agreed value of $ 11,121, upon the agreement of the corporation that they would pay her an annuity of 5% upon that value, in half-yearly payments, during the remainder of her life. The annuity was paid to her as long as she lived. Her brother testifies that she told him that some church people came to her and solicited means for the missionary cause, and came to her for a donation; that they were persistent. She claimed the Dakota land was missionary money, and that she was going to give that to the missionary cause. It is not quite clear from the record whether this Dakota land was a part of the deed for which an annuity was to be paid. As we understand it, it was so. She received about $ 3,100 or $ 3,200 from her father's estate; so that she had, up to the time of her decease, in addition to the annuity agreement of $ 556 a year, property, above her liabilities, of about $ 7,500, including her home in Humboldt. She employed an attorney in Humboldt to assist her in looking after her investments. She deposited her money in a bank, and drew checks upon it for disbursements; 35 of these checks were introduced in evidence, bearing date from September 23, 1914, to February 12, 1915. Some of these were in her own handwriting, and drawn after the execution of the will. Deceased was a reader of books of the most substantial character. The man who was her pastor from October, 1913, during the remainder of her life, testified that she frequently obtained books from his library of that character; that she was a positive woman, of positive convictions, and used her own judgment; that she consulted him, but reached her own conclusions; and that she was a devoted Christian woman,--was devoted to her church work and to charity work. The provisions of her will, which will be referred to, were in line with this work in which she was interested. She was always well satisfied with the investment of money in the life annuity. She was a member of the Methodist church, and a member of its board of trustees, at Humboldt; she was class leader in the church, and a member of the official board, the business board of the church. She was one of the most regular attendants at the meetings of the board, in which she had an active part, and the evidence tends to show that she was a vital part of the business of the church, and her opinions were always regarded by her pastor as of value on the board.
About December 1, 1914, she began to prepare for the execution of her will. She consulted with her pastor about it, and about making a final disposition of her property; inquired about the different church boards and about the Children's Home. He made no suggestions as to what disposition she should make of her property. About January 1, 1915, she asked...
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