In re Workman's Estate

• Decision Date: 17 February 1916
• Docket Number: 29893
• Citation: 156 N.W. 438,174 Iowa 222
• Parties: IN RE ESTATE OF MARY S. WORKMAN, Deceased
• Court: Iowa Supreme Court

156 N.W. 438

174 Iowa 222

IN RE ESTATE OF MARY S. WORKMAN, Deceased

No. 29893

Supreme Court of Iowa, Des Moines

February 17, 1916

Appeal from Greene District Court.--F. M. POWERS, Judge.

CONTEST on the probate of a will. Verdict and judgment for proponents. Contestants appeal.

Reversed.

Church & McCully and J. A. Henderson, for appellants.

Wilson & Albert, for appellees.

GAYNOR J. EVANS, C. J., LADD and SALINGER, JJ., concur.

OPINION

GAYNOR, J.

On the 19th day of February, 1912, there was filed in the office of the clerk of the district court of Greene County certain written instruments purporting to be the last will and testament of Mary S. Workman, deceased. These instruments consisted of two separate documents, one purporting to be her will (which, for convenience hereafter, we will call the original will), dated May 20, 1911; the other purporting to be a codicil to the will, dated January 26, 1912. The will provided:

1. For the payment of her debts.

2. A bequest to her brother, James Thompson, of $ 50.

3. A bequest to her brother, Samuel Thompson, of $ 700.

4. A bequest to her brother, Joseph Thompson, of $ 600.

5. A bequest to her sister, Margaret Hill, of $ 500.

6. A bequest to her nephew, John F. Thompson, of $ 200.

7. A bequest to her niece, Martha Hoyer, of $ 200.

8. A bequest to the Methodist Episcopal Church of Grand Junction of $ 300.

9. A bequest to Grand Junction Cemetery Association, of $ 50.

10. A bequest to her sister, Ellen A. Zellhoeffer, of all her household goods.

11. "All the rest and residue and remainder of my estate which I now own, may acquire, or shall die seized, or possessed, I give and bequeath to my brothers, Joseph and Samuel, and to my sister, Ellen Zellhoeffer, the same to be divided equally among them, share and share alike."

F. J. Harned was nominated as executor of the will. The codicil made no change in the original will, except in the 11th clause, and the only change in this clause lies in adding the name of Margaret Hill as residuary legatee with the others named in the said clause.

Afterwards, on March 25, 1912, Joseph, James and Samuel Thompson, brothers of Mary S. Workman, appeared and filed written objections to the probate of the will, basing their objections upon two grounds: (1) That, at the time of the execution of the will, Mary S. Workman was not of sound and disposing mind, but was incapacitated to make a will; (2) that the purported will was procured and executed by fraud, duress and undue influence, exercised by Ellen A. Zellhoeffer and Bertha E. Zellhoeffer, sister and niece respectively of the testatrix. They urged the same objections to the codicil.

I. A trial was had to a jury upon the issue thus tendered. Upon the trial, the due execution of the will was proven by the witnesses to the will, and the will was offered in evidence. The execution of the codicil was not proven, nor was any evidence offered to show that the alleged codicil was executed by Mary S. Workman or witnessed, as required by law. It was not introduced in evidence. Proponents disclaimed any rights based upon the codicil, nor was any proof offered to show that it was a codicil to the will. Contestants objected to it on the ground that Mary S. Workman was not of disposing mind at the time the codicil was made; objected to it on the ground that it was the result of undue influence exercised upon her mind.

This so-called codicil appears to be dated 8 months after the execution of the will. It was not shown to have been executed and witnessed as required by law, and, not having been offered in evidence, was not before the court for consideration, nor is it before us now. We say this because there is some contention in this case that the will and the codicil should be construed together. There is no codicil in this case to be construed, either with or without the will. Neither party placed it in the record. So far as this record is concerned, the codicil is a dead piece of paper. It was filed as a codicil, but no proof was offered which gave it life as such. In fact, proponents disclaimed any right under this so-called codicil and conceded that, under the showing made, it was not entitled to probate, thus accepting contestant's contention touching the codicil. The cause was tried upon the issues involving the original will alone, and with this alone we have to deal. At the conclusion of the testimony, the court withdrew from the consideration of the jury the question of fraud and undue influence, and the cause was submitted upon the question of testamentary capacity alone. Upon the issue thus tendered, the jury returned a verdict for the proponents and from this contestants appeal, and assign 75 errors committed by the court in the progress of the trial, which, for convenience and brevity, they subdivide into 39 points, on each of which they rely for reversal. In the view we take of this case, it will not be necessary for us to review separately the points relied upon. They may be grouped into three general classes:

1. Error in the admission and rejection of evidence.

2. Error in the instructions given by the court.

3. Misconduct of counsel.

Many of the errors alleged to have been committed by the court in the admission and rejection of evidence should not have been urged here at all, for the reason that an examination of the record discloses that many of these errors were cured by the court on its own motion, in its rulings during the progress of the trial.

It was claimed by contestants that Mary S. Workman executed certain deeds to her sister Ellen Zellhoeffer and to her sister's children on the same day and at the same time she executed the will, and as a part of the same transaction. The scrivener who wrote the will, and who is executor of the will, was asked, when upon the stand, whether or not there were any other instruments executed at the time the will was executed. Objection was sustained to this question. Bertha Zellhoeffer, niece of the testatrix, was asked whether or not she was one of the grantees named in one of these deeds. Objection was sustained. On these rulings, error is predicated.

Of course, it was right to show, by competent evidence, that, at the time of the making of the will, the testatrix conveyed a large portion of her property to these parties who were charged with having exercised undue influence over her in the making of the will, and as tending to show an unfair and unnatural disposition of the property; but whatever error there might be in this was subsequently corrected by the court in the admission of certified copies of those deeds, in which all the facts sought to be elicited by the questions were made more manifestly to appear than could have been done by the answers objected to, and, therefore, the error, if any, was without prejudice.

It is alleged that the court erred in sustaining objection to a question asked one of the contestants, Joseph Thompson:

"Q. Did you observe the expression upon her face and know what that indicated? A. Discouragement."

This answer was stricken out on motion of proponents. The witness, however, was permitted to say:

"The expression of her face and her appearance showed signs of pain, anguish and distress. When she was not sick, she was of a cheerful disposition. She looked very frail and pale, reduced in weight, her eyes set further back in her head, her lips were of a redder nature than natural. Her face was swollen. Her general appearance showed weakness. Basing my opinion on what I have detailed in my testimony, I would say she was of unsound mind."

Error was predicated upon the action of the court in sustaining objections to questions and striking out answers given by one James P. Davis, called by contestants. Before the question was asked, he detailed at some length what he observed in her conversation at the time he saw her, as compared with her conversation in times of health, her condition of flesh, her inability to hold her mind on conversations, and many other things. The question was asked him:

"Basing your answer upon the same facts and circumstances, was she or was she not of sound mind?" He answered: "I would have to state that her mind was not strong, by reason of her wasted condition and decline of health, but to say that her mind was unsound, I don't know to what extent that would go. Well, I don't believe she was capable of transacting business of any great importance."

On motion, the last part of this answer was stricken out.

The question was subsequently asked him:

"And her actions. She did not act as she did when she was well and before she went away?" Witness answered: "I consider her actions as those of a weak woman. Her mind as well as her body. I don't think she was unsound, by any means. I simply mean she was not in a condition to transact business matters of any importance."

This answer remained, and cured whatever error there was in the previous action of the court.

James Thompson, witness for contestants, on direct examination having described in a general way the appearance and manner of the deceased, was asked the following question:

"Q. What is the fact as to whether or not, while she was there she appeared to be unsettled in her thought about her property? (Objected to and sustained.)" He then stated: "I never saw any improvement in my sister's condition after she returned to Grand Junction." (It appears that the will was executed about a week after her return.) He was then asked this question: "Basing your answer upon what you described in your testimony, and this statement alone, what do you say as to the mental condition of your sister on the 20th day of May, 1911? Was she normal or otherwise? (Objection renewed and overruled.) ...