Ipsen v. Ruess

• Citation: 35 N.W.2d 82,239 Iowa 1376
• Decision Date: 14 December 1948
• Docket Number: No. 47341.,47341.
• Parties: IPSEN et al. v. RUESS et al.
• Court: United States State Supreme Court of Iowa

239 Iowa 1376
35 N.W.2d 82

IPSEN et al.
v.
RUESS et al.

No. 47341.

Supreme Court of Iowa.

Dec. 14, 1948.

Appeal from District Court, Johnson County; James P. Gaffney, Judge.

Will contest on grounds of mental incapacity and undue influence. The court withdrew the issue of undue influence. Verdict for contestants on ground of mental incapacity. From judgment on the verdict setting aside order of probate, proponents have appealed.

Reversed.

[35 N.W.2d 85]

Pauline M. Kelley and Ries, Dutcher & Osmundson, all of Iowa City, for appellants.

D. C. Nolan and A. C. Cahill, both of Iowa City, and Robert Brooke and Harold Keele, both of West Liberty, for appellees.

GARFIELD, Justice.

Testator, J. W. Ruess, a bachelor who lived in West Liberty, died on October 7, 1946, at 72. His will, dated May 15, 1942, was admitted to probate without objection in November, 1946. This action to set aside probate was commenced in June, 1947, by 11 nieces and nephews, issue of deceased brothers and sisters of testator.

The will was prepared by attorney J. E. McIntosh of West Liberty. Subject to payment of debts and two other unimportant provisions, the will divides the estate into three equal parts between a nephew, Louis Ruess, a niece, Hazel Pomaine Consamus, and (the remaining part to) a sister, Mrs. Hoffelder, and her son, a nephew, Raymond Hoffelder. These four beneficiaries and Louis as executor are proponents.

By deeds dated the day before the will bears date testator had conveyed his 80

[35 N.W.2d 86]

acre farm to the nephew Louis and wife and his home in West Liberty to the nephew Raymond. The will provides the farm was valued at $12,000 and the home at $5000; these amounts should be considered part of the estate and the shares of Louis and Raymond respectively charged therewith. Louis is named executor without bond. The total estate approximates $40,000 in value.

Testator lived with his widowed mother and unmarried sister on a farm near West Liberty until 1918 when the three moved into town together. After the mother died testator and his sister Frances continued to live in the same home until Frances' death in 1940. Testator then lived alone his remaining six years.

The trial court submitted the issue of mental incapacity to the jury who found for contestants. In different ways proponents have challenged the sufficiency of the evidence on that issue. We first consider such challenge without reference to the numerous errors assigned upon questions of evidence.

I. We are inclined to hold the evidence, viewed in the light most favorable to contestants, sufficient to raise a jury question as to mental incapacity.

There can be no doubt contestants had the burden to prove mental incpacity at the very time of making the will. See In re Estate of Grange, 231 Iowa 964, 975, 2 N.W.2d 635, 641;In re Hayer's Estate, 230 Iowa 880, 884, 299 N.W. 431, 434; Annotation 168 A.L.R. 969, 970, 983.

Testator did not engage in business after he moved to West Liberty although he apparently looked after his property until his last illness beginning in January, 1946. Most of the evidence relates to the period following the death of the sister Frances in 1940. From that time on testator had hardening of the arteries which caused a serious heart condition at least by July, 1945. In January, 1946, he was very sick with a cardiorenal vascular disease. Testator was confined in an Iowa City hospital from July 6, 1946, until September 21, he then became unmanageable but not violent, was adjudged insane by Johnson County commissioners of insanity and taken to the State Hospital for the Insane at Mt. Pleasant where he died October 7, 1946.

Testator had severa illnesses during his last six years. He was a patient at the University hospital in Iowa City for about ten days in April, 1941. He then complained of severe pain in his abdomen and shortness of breath on mild exertion. The doctors found moderate arteriosclerosis with hypertension. Testator was examined twice at this time by Dr. Miller of the University Psychopathic hospital because he had delusions there was glass in his food, ‘they’ might want to poison him and at night somebody was looking in at him. On the second examination by Dr. Miller, however, these ideas had disappeared.

Testator (then 67) was next a patient at a Muscatine hospital from May 24 to 28, 1942-again complaining of severe pain in his left side which could have been caused by a stone in the ureter. His trouble was diagnosed as uretral colic. For two weeks in June and July, 1943, testator was in Mercy hospital in Iowa City, troubled with similar pain in the left abdomen and colitis. The hospital record for July 5 states the patient feels much better and ‘finally (is) becoming convinced his trouble is in his head.’

Testator returned to Mercy hospital on July 5, 1945, for 17 days. The doctors diagnosed his illness then as myorcarditis and heart disease. His arteriosclerosis had advanced to a moderately severe stage. However, Dr. Hennes who attended him at this time testified (as proponent's witness $ testator was then normal mentally. His next trip to the hospital was during his last illness, as stated, in July, 1946, following several months confinement to his own home and that of his nephew Louis Ruess.

The attesting witnesses to the will were attorney McIntosh, who died before the trial, and his then secretary, Mrs. McMann, who testified for proponents. She knew testator casually. Her recollection of the making of the will was rather indistinct but she believed testator came to the law office in the morning to give the

[35 N.W.2d 87]

attorney the things he wanted put in his will, it was written up and testator returned that afternoon and executed it. Mrs. McMann gave her opinion testator was of sound mind on that day and said she had not seen him ‘do anything foolish’ at any time.

A contestant (a brother of proponent Louis) testified he saw testator on Main street about 8:45 a. m. of the day previous to the date of the will, he appeared very weary, pale and worn out; Louis was with testator, assisted him to the car and they drove away. This is the nearest contestants' direct testimony comes to the time of making the will.

Seven of the eleven contestants testified to observations made by them of testator at various times generally between their Aunt Frances' death in 1940 and testator's death six years later, but expressed no opinion as to their uncle's claimed unsoundness of mind. Two other contestants told of their observations of testator and gave the opinion, based thereon, he was of unsound mind on May 15, 1942. Two other nonexpert witnesses, not parties to the suit, after detailing certain facts regarding testator, expressed an opinion testator was unsound mentally from about the fore part of 1941 until his death.

Two expert witnesses testified for contestants. Dr. Miller who, as stated, examined testator in April, 1941, and Dr. Woods, a prominent psychiatrist, who had never seen him but gave the opinion testator was mentally unsound on and after May 14, 1942, in response to a long hypothetical question based on the hospital records of his confinement in the different hospitals as above related and various assumed matters of which it is claimed there was evidence.

Dr. Miller testified that in April, 1941, testator was neurasthenic, showed signs of generalized arteriosclerosis and sclerosis of the blood vessels of the brain, had arteriosclerotic heart disease but not senility, and was of unsound mind when he first examined him but was considerably improved the following day. Dr. Miller indicated testator's unsoundness was not permanent but transitory-he did not appear psychotic. Dr. Woods disagreed with this view, however, and testified in effect that testator's mental condition was progressively worse from April, 1941.

Some of the nonexpert testimony for contestants is that testator changed for the worse both physically and mentally following his sister's death. Perhaps the most emphatic evidence was given by contestant Mary Ipsen, in part substantially as follows:

‘After her funeral, I saw Uncle Will in the summer and he was dejected, depressed and sort of off in space. From that time until he was in the hospital in Iowa City in 1941, there was an increase in his dejectedness. Once when I saw him in 1941 he was unshaven, staring at the ceiling, sort of talking to himself, and mumbling. I heard him say ‘They have put glass in my food,’ also ‘There is a man outside the door; he is a lawyer; he is trying to get my money; all the nurses are crazy about me. They want to marry me. Somebody is trying to get me, I am afraid.’ He did not appear to know me.

‘After he left the hospital I saw him in West Liberty on several occasions. He did not appear to recognize me or know who I was. * * * He was not aware of the fact I was there. He would ramble and not be able to carry on any coherent conversation, talk to himself and look off into the distance. * * *

‘He said he was afraid and was going to keep his doors and windows locked, ‘they are trying to get all my money,’ and whom he meant by ‘they’ I don't know. * * *

‘In April, 1942, I stopped at my uncle's residence with my sister Elizabeth. He did not appear to know I was present and did not appear to recognize me. * * *

‘Up until his last illness my observation was he was in a condition of decline.’

There is quite a little other evidence of similar character, largely from other contestants. Together with Dr. Woods' testimony, there is substantial evidence testator was of unsound mind in April, 1941, grew progressively worse thereafter and, it may be inferred, was incapacitated on May 15, 1942, when the will was made.

[35 N.W.2d 88]

Unquestionably he was unsound the last few weeks and probably the last few months of his life.

It is true there is an impressive array of witnesses for proponents who have drawn a quite different picture of testator. Some 13 nonexpert witnesses, all apparently...