Kern v. May

• Decision Date: 15 December 1894
• Citation: 92 Iowa 674,61 N.W. 390
• Parties: KERN v. MAY.
• Court: Iowa Supreme Court

92 Iowa 674

61 N.W. 390

KERN

v.MAY.

Supreme Court of Iowa.

Dec. 15, 1894.

Appeal from district court, Linn county; J. H. Preston, Judge.

Action at law to set aside the will of James Johnson, deceased. The case was tried to a jury that returned a verdict for plaintiff, which verdict the court, on motion, set aside, and awarded a new trial, and from the ruling the plaintiff appealed. Affirmed.Rickel & Crocker, for appellant.

Mills & Keeler, for appellee.

GRANGER, C. J.

James Johnson, now deceased, made his will on the 8th day of September, 1891. At the time of making his will, he was a widower, and had but one child, who is the plaintiff. The defendant was his niece. He owned 130 acres of land, in which he devised to his daughter a life estate. The remainder of his estate was to go to the children of the daughter, if she died leaving any. If the daughter died without issue, then the remainder was to go to the defendant. The grounds upon which it is sought to set aside the will are undue influence and the intoxication of the testator when the will was executed. It is agreed that the will was executed on the 8th day of September, but the parties are in dispute as to whether it was before noon or between the hours of 5 and 7 p. m. The importance of this dispute, as to the particular time, is because of evidence showing that Johnson was intoxicated the latter part of the day. The jury found, specially, that Johnson was intoxicated when he signed the will, and that it was signed at from 5 to 7 o'clock in the evening. The general verdict was that the will should be set aside. The motion for a new trial presented twelve grounds, eight of which the court overruled, and sustained it as to four grounds. From this action of the court it appears that the motion was sustained on the ground that neither the special finding nor the general verdict was supported by the evidence.

The only question for our consideration is whether or not the district court abused its discretion in awarding the new trial. Appellant contends with great earnestness and a lengthy review of the evidence that there was such abuse as to warrant us in reversing its action. We do not think so. It is true that the witnesses, in number, preponderate in favor of plaintiff, and even though, in our judgment, the evidence might do so, still it would not necessarily follow that the discretion of the court was abused. Counsel do not differ as to law governing the case, but only as to...