James v. Fairall

• Decision Date: 15 February 1912
• Citation: 134 N.W. 608,154 Iowa 253
• Parties: NANCY W. JAMES, Appellant, v. MAE L. FAIRALL, Executrix et al., Appellees
• Court: Iowa Supreme Court

134 N.W. 608

154 Iowa 253

NANCY W. JAMES, Appellant, v. MAE L. FAIRALL, Executrix et al., Appellees

Supreme Court of Iowa, Des Moines

February 15, 1912

Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge.

THIS is an action to set aside the probate of the will of Ellen J Fairall, deceased, and to declare the said will null and void. A jury was called, and at the conclusion of the testimony the trial court directed a verdict for the defendants. Plaintiff appeals.

Reversed.

Remley & Calkins, for appellant.

O. A Byington and Wade, Dutcher & Davis, for appellees.

OPINION

DEEMER, J.

What purported to be the last will and testament of Ellen J Fairall, deceased, with a codicil attached, was duly admitted to probate by the district court of Johnson county, Iowa, on June 1, 1907, and Mae L. Fairall was appointed executrix thereof. This action was commenced by plaintiff, a daughter of the deceased, February 5, 1910, to set aside the probate thereof, and to declare the said will null and void because of the fraud and undue influence of S. W., Harry, Maud, and Frank Fairall, beneficiaries under the will. The parties last above named answered, denying the alleged fraud and undue influence and two other heirs, to wit, W. W. and Geo. W. Fairall, filed an answer averring want of interest in the controversy and offering no objection to the prayer of the petition. The case came on for trial to a jury and plaintiff, among other things, sought to show certain declarations made by Maud Fairall, one of the beneficiaries under the will after the execution thereof with reference to how the testatrix came to make it. These so-called declarations are said to have been made both before and after testatrix's death, and after the execution of the will. The will was made October 31, 1905, and a codicil was executed December 15th of the same year. By the terms thereof the principal beneficiaries thereunder aside from testatrix's husband, now dead, are the defendants S. W., W. W., Geo. W., Harry, Frank, and Maud Fairall. The will expressly provided that: "It is my will and wish and I so provide, that my daughter, Nancy W. James, shall have and receive nothing from my estate, except that I desire that she be paid any just claim or obligation existing between us."

I. None of the declarations sought to be shown were part of the res gestae, and the question presented here is whether or not the declarations of one of the beneficiaries under a will showing or tending to show testator's incapacity or inability to make a will or that he was unduly influenced in making it are admissible in a suit to which all the beneficiaries are parties. Upon this proposition, there is a decided conflict in the authorities, and some distinctions have been made to which reference is necessary that our holding may not be misunderstood. Of course, if the declarations are so connected with the making of the will in point of time and circumstance as to give color thereto, they are admissible as part of the res gestae.

Again, if the declarant be the sole beneficiary under the will, his admissions are binding as against interest; and it is also a general rule in those jurisdictions which permit the probate of separate parts of a will that declarations of one of the beneficiaries tending to show undue influence are admissible. Again, some courts hold that statements of one devisee are admissible in evidence to affect the interest of his codevisees where such interest is joint. See, as sustaining these views, Potter's Will, 161 N.Y. 84, (55 N.E. 387); Higginbotham v. Higginbotham, 106 Ala. 314, (17 So. 516); Ames Will, 51 Iowa 596, 2 N.W. 408; Garland v. Smith, 127 Mo. 583, (28 S.W. 196, 29 S.W. 836); Capper v. Capper, 172 Mass. 262, (52 N.E. 98); Smith v. Henline, 174 Ill. 184, (51 N.E. 227); Morris v. Stokes, 21 Ga. 552. But in those jurisdictions where the will is treated as a unit the declarations of a devisee are not admissible in cases where undue influence is charged; there being several whose interests are separate. Livingston's Appeal, 63 Conn. 68, (26 A. 470); McMillan v. McDill, 110 Ill. 47; Shailer v. Bumstead, 99 Mass. 112; Dale's Appeal 57 Conn. 127, (17 A. 757); Thompson v. Thompson, 13 Ohio St. 356.

The overwhelming weight of authority in this country is to the effect that, where there are several devisees or legatees whose interests are several and not joint, the declarations and admissions of one of these are not admissible because they would operate to the prejudice of the other devisees. See cases already cited, and the following of our own which adhere to the same rule: In re Ames, 51 Iowa 596, 2 N.W. 408, Dye v. Young, 55 Iowa 433, 7 N.W. 678; Parsons v. Parsons, 66 Iowa 754, 21 N.W. 570; Goldthorp's Estate, 94 Iowa 336, 62 N.W. 845; Hertrich v. Hertrich, 114 Iowa 643, 87 N.W. 689; Hull v. Hull, 117 Iowa 738; Fethergill v. Fethergill, 129 Iowa 93, 105 N.W. 377; Vannest v. Murphy, 135 Iowa 123 at 126, 112 N.W. 236; Chaslavka v. Mechalek, 124 Iowa 69, 99 N.W. 154, relied upon by appellant, does not announce a contrary doctrine. Lundy v. Lundy, 118 Iowa 445, 92 N.W. 39, also relied upon, is readily distinguishable for the reason that the decision is planted squarely upon the ground that declarant was the principal beneficiary under the will, the recipient of substantially the entire estate, and the sole proponent. The will now before us makes a specific devise or bequest to W. W. Fairall and devises the remainder to five of his other children, share and share alike. There was no joint gift, and the case does not fall within any of the exceptions heretofore noted.

II. The only other question in the case is the sufficiency of the testimony to take the case to a jury. The verdict was directed at the close of plaintiff's testimony, and no evidence was offered for defendants. We are not to determine the very truth of the matter; on the contrary, we must give to the testimony the most favorable aspect it will bear in support of plaintiff's claim of fraud and undue influence, and, if rational minds might fairly reach the conclusion from this testimony that the will was the result of either fraud or undue influence, then the question is for a jury. We should indeed put it stronger than this, and say that, if reasonable minds might reasonably differ in their conclusions, then the question is for a jury. Degelau v. Wight, 114 Iowa 52, 86 N.W. 36; Hartman v. Railroad Co., 132 Iowa 582.

The facts disclosed by the record, while not strong, were in our opinion sufficient in the absence of all explanation or counter showing to take the case to a jury. The terms of the will have already been set out, and it substantially disinherits the plaintiff. This, of course, is a circumstance which in itself proves nothing. But it may be considered with the other testimony in support or confirmation thereof. S. W., Harry, Frank, and Maud Fairall always lived with the mother, the testatrix, and were living with her at the time of her death; their home being what was known as the old Fairall homestead. Testatrix died in April, 1907, at the age of seventy-one years. Her health had been failing for some six or seven years before she died, and she was weak and nervous. Geo. W. Fairall had married some years prior to the the death of his mother, and his family relations were not harmonious. Plaintiff, Mrs. James, a daughter, had also been married many years and lived in her own home. W. W. Fairall, another son, is also married, and has not since lived with his mother. Down until some time during the latter part of the year 1904, the family relations were harmonious, and the mother seemingly thought much of her children and was not discriminating in her affections. At or about that time, George W. was having some trouble with his wife, and plaintiff was requested to go to S.W. Fairall's office to get some money to give George's wife that she might go to her parents' home in Mapleton. Mrs. James got the money and gave it to the wife. Testatrix learned that some one had furnished the wife with the money, and she became much incensed over the affair. She accused S.W. with having furnished the money, but he denied it, and led the mother to believe that plaintiff had furnished it. This so provoked the mother that she never afterward visited the plaintiff, and she finally reached such a point that she would not speak to her. Even after this transaction the mother said, however, that while she did not think plaintiff had treated her right, she did not intend to cut out any of her children by will, and that they should all have equal shares. She also declared at another time that she would not make a will; that she had promised her husband not to.

We now quote some of the testimony from the record.

One witness testified to hearing the following conversation between the testatrix and her daughter Maud: "Maud said to mother that, by God, if she did not make a will cutting Nan, meaning Mrs. James, out, she would leave home. Mother said she did not think Nannie had treated her right, but that she had always said she would never make a will cutting any of her children out; that they should have equal shares. Mother was nervous at this time, and she cried. "

Another witness, a daughter of W. W., gave the following testimony:

In January, 1906, I spent several days with my Grandmother Fairall. At that time I had a conversation with her in reference to Maud inducing her to make a will. Q. Now, you may tell the jury what was said by your Grandmother Fairall in regard to Maud asking her to make a will? A. Well, Maud had gone to town after supper, and we were in grandmother's room, and grandma was nervous and upset said she was living alone; that no one stayed with her, and her words...