In re Willer's Estate

• Decision Date: 05 August 1938
• Docket Number: 44320.
• Parties: In re WILLER'S ESTATE. v. DOHSE. WILLER et al.
• Court: Iowa Supreme Court

281 N.W. 155

225 Iowa 606

In re WILLER'S ESTATE.

WILLER et al. v. DOHSE.

No. 44320.

Supreme Court of Iowa.

August 5, 1938

Appeal from District Court, Clinton County; Frank D. Kelsey, Judge.

This is a will contest in which the contestant set up lack of testamentary capacity, undue influence, and improper execution. In the course of the trial reliance was placed only on lack of capacity and that only will have attention herein. A jury was waived, trial was had to the court, and judgment and decree entered on September 14, 1936, admitting the will to probate. Motion for a new trial was overruled and contestant brings her appeal to this court.

Affirmed.

Miller & Claussen, of Clinton, for appellant.

M. L Sutton, of Clinton, for appellees.

SAGER Chief Justice.

We find it unnecessary in the decision of the questions before us to set out at any great length the facts upon which the parties rely. The record presents the kind of evidence commonly produced in cases of this kind, with the contradictions which are usually found in will contests. It is sufficient for our purpose to say that we have carefully gone over the record and have reached the conclusion that the action of the trial court was right.

It would extend this opinion to an unwarranted length to take up all the complaints made by the contestant, particularly with reference to the alleged errors upon which the motion for a new trial is based. This document takes up nearly thirty-four pages of the printed abstract, but, as we read the record contestant's claims and criticisms may be summed up under a few general heads.

Much stress is laid upon the rulings of the trial court in excluding testimony offered by the contestant. It may be conceded that some of the rulings in this regard were not correct, but we find that wherever testimony was excluded the excluded matter found its way into the record so that no error resulted. A few examples of the testimony of the ruling out of which contestant complains are noticed. The court excluded testimony to the effect that: " His physical condition wasn't good. * * * He was not in good health. * * * They (the conversations) would drift onto other matters, but when talking of Germany he would talk as if I should know all about it." This latter phrase was stricken out because a statement of opinion and conclusion. Again, this appears: " Well, he would talk, you know, without any sense to it, changing the subject." This was stricken on the same grounds. There was testimony that: " He spoke of the fact to me that he did not feel a bit good; " further, that he acted " like a sick man," and that " he appeared to be very feeble." This likewise was ruled out. Instances might be multiplied along the same general line, but, as indicated, we find it unnecessary to do so. The facts sought to be elicited by the stricken testimony we think were covered by the testimony of other or the same witnesses, and we find no error, while not approving the rulings made. If some of the stricken testimony was not exactly and in detail supplied by the witnesses, there is nevertheless no error because, even if the excluded testimony had been admitted, the record still presents a jury question. Because of that fact we are not disposed to set aside the findings of the trial court. See In re Estate of Cooper, 200 Iowa 1180, 206 N.W. 95, wherein Albert, J., used language which is appropriate to the case before us (page 97): " There is nothing in the record to show that the testator was so lacking in mental capacity as to be unable to intelligently remember and identify the property he possessed and the natural objects of his bounty, and to intelligently dispose of the same. This is the ultimate measure of mental capacity that the law requires of a testator. Will contests must turn largely upon the facts incident to each case, and it is difficult to lay down a rule in such matters."

Contestant, as another proposition, argues that the fact that testator was under guardianship at the time he made the will made a prima facie case in her favor which was not overcome by proponents' testimony. With this we cannot agree. The record does in fact establish the guardianship, but it does not appear that the court, in appointing the guardian, passed upon the question of mental incompetence. A careful reading of the record shows that the court was warranted in concluding (if it did so) that this guardianship was established because of excessive drinking on the part of the testator, and that he was placed under guardianship because of his weakness in that regard. There was no testimony offered when the appointment was made, but apparently the court was given a statement of the general situation by the attorney for the children. This was made in the presence of testator's attorney, who made no objection or resistance to the application.

We held in Cahill v. Cahill, 155 Iowa 340, 136 N.W. 214, that where the appointment is not based upon any specific grounds, and might have been made upon one of several grounds, parol testimony is receivable to explain the appointment, though not to contradict it.

See, also, Brogan v. Lynch, 204 Iowa 260, 214 N.W. 514.

It was the unqualified testimony of the attorney who drew the will, and of his stenographer who was present, wrote, and witnessed the will, that at the time of the making thereof the testator was of sound mind and understood the nature of his act. Contestant herself seems not to have seriously considered the guardianship as establishing testator's mental incompetency. She presented for probate a will drawn by him in 1934. The petition for the appointment, in which contestant joined, was filed in March 1933, and appointment of a temporary guardian thereunder was made in November of the same year. The 1934 will bequeathed his property share and share alike. The will executed in 1936 revoked the earlier will and made no provisions for contestant. Another evidence of contestant's view of her father's (testator) mental condition and the purpose of asking a guardian, is this: While the sworn petition alleges that testator was " incompetent to transact business," etc., she took a deed from her father. This was dated November 23, 1933, just two days before the temporary guardian was appointed. Through and by it she acquired the home in Clinton and, so far as the record discloses, has it yet. The property so deeded, though not of great value, nevertheless represented a larger value apparently than the legatees under the present will will receive. In addition to this, the record would seem to indicate that contestant had borrowed from testator a considerable sum of money, $500 of which remained unpaid at the time of the father's death. The total estate is very small-$1659.84, which when reduced by the estate expenses will result in an amount of less than $1000 to be divided among the four proponents.

There is a controversy among the parties as to whether the deed to the contestant was intended to pay her...