Kirsher v. Kirsher

• Decision Date: 13 May 1903
• Citation: 94 N.W. 846,120 Iowa 337
• Parties: JOSEPH KIRSHER et al., v. JACOB KIRSHER et al., Appellants
• Court: Iowa Supreme Court

94 N.W. 846

120 Iowa 337

JOSEPH KIRSHER et al., v. JACOB KIRSHER et al., Appellants

Supreme Court of Iowa, Des Moines

May 13, 1903

Appeal from Polk District Court.--HON. W. F. CONRAD, Judge.

PETER Kirsher died in August, 1897, leaving a written instrument purporting to be his will. It was duly executed, and was probated as his will on the 27th day of October, 1897. On the 31st day of August, 1898, this action was brought to set aside the probate proceedings, and to declare that said instrument was not the will of said Kirsher, because it was procured by fraud and undue influence, and because of his mental incapacity to make a valid will. It was also alleged that the instrument was not properly executed. The case was tried to a jury, and, after the evidence was all in, the court withdrew from the consideration of the jury the issues as to fraud and undue influence, and as to the execution of the instrument, and submitted the case on the issue as to the mental capacity of Kirsher. The jury found for the contestants, and a judgment was rendered on the verdict. The defendants appeal. The costs were taxed to the estate, and from that order the plaintiffs appeal. The defendants will be designated as appellants.--Affirmed on plaintiffs appeal, and reversed on that of defendants.

Judgment AFFIRMED on the plaintiffs' appeal, and REVERSED on the defendants'.

Dale & Harvison and Connor & Weaver for appellants.

J. W Near and Reed & Read for appellees.

SHERWIN J. BISHOP, C. J., taking no part.

OPINION

SHERWIN, J.

The evidence is voluminous, and an attempt to set forth in detail sufficient thereof to show its trend in support of the adverse claims of the parties hereto would extend this opinion beyond any length profitable to the profession or to the parties. All of the parties to the action are children of the deceased--his wife having died before he did--and the testimony as to their father's physical and mental condition during the period of his life material to the question before us is in conflict. We have given the entire record the care which the importance of the litigation demands, and reach the conclusion that the verdict has such support in the evidence that we should not say, as a matter of law, that it is wrong.

The will in question was executed on the 18th day of June 1897--a little over four months before Mr. Kirsher's death. He was then past eighty years of age, and physically weak. For many years prior thereto, and prior [120 Iowa 340] to 1894, he had been totally blind. On the 11th day of July, 1894, he suffered a stroke of apoplexy, and was treated therefor by Dr. Henry Matter, who testified that when he reached him, soon after the attack, Mr. Kirsher knew him, and was able to, and did, talk intelligently with him and others. Dr. Matter also testified that he did not consider the stroke a severe one, and that Mr. Kirsher partially recovered therefrom, though never enough so to walk without help. There is but little conflict in the testimony as to Mr. Kirsher's physical condition after the stroke, but the contestants claim that it was immediately followed by senile dementia which continued until his death. It may be said in this connection, however, that the contestants' witnesses are not agreed as to the duration of the effect of the stroke upon the deceased, though there is testimony supporting the contestants' theory. On the other hand, the decided weight of the testimony, as we view it, shows that no general or settled mental disability was caused by the stroke, or followed it. On this branch of the case the court gave this instruction:

"If, considering as directed in instruction No. 7--the last preceding instruction--you have found that the said Peter Kirsher at any time prior to the date of the execution of said will was of unsound mind, then his mental unsoundness is presumed to continue, unless a recovery or restoration is shown, and the burden is upon the defendants to show such recovery, and that at the very time of the execution of the instrument in question the said Peter Kirsher was of sound mind, as elsewhere defined in these instructions. If you find by a preponderance of the evidence that the said Peter Kirsher for a longer or shorter time before the execution of the will was of unsound mind, yet, if you further find by a preponderance of the evidence that at the very time of the execution of the will the said Peter Kirsher was of sound mind, then your verdict will be for the defendants. But if you find, as hereinbefore instructed, that at the time of the execution of the will the said Peter Kirsher was of unsound mind, then your verdict will be for the plaintiffs."

Instruction 7, referred to in the foregoing paragraph, was a general one, directing the jury what might be considered in determining the mental condition of the deceased at the time the will was executed, and instructing as to the weight of the testimony.

Primarily, every person is presumed to be sane until the contrary is proved, and the burden of proof of insanity rests in the first instance upon the party alleging it. It is equally as true that, when settled and general unsoundness of mind is proved, a presumption arises in favor of its continued existence. Corbit v. Smith, 7 Iowa 60; Blake v. Rourke, 74 Iowa 519, 38 N.W. 392; Bever v. Spangler, 93 Iowa 576, 61 N.W. 1072. But this court has never held (and, so far as we have examined the cases, no other) that proof of insanity at a stated period, without reference to the particular circumstances connected therewith, is sufficient to authorize the inference of insanity at a remote subsequent period. Temporary mental aberration is not uncommon, and the causes thereof are numerous, among which, science and observation have taught us, are all forms of violent disease, including appolexy. In Trish v. Newell, 62 Ill. 196 (14 Am. Rep. 79), it is said, "It is no more a presumption of law that one rendered unconscious and incapable of mental action by a stroke of paralysis will continue so for four months thereafter, than that he would if the same effect was produced by a blow on the head." The instruction given failed to recognize the distinction we have pointed out, and permitted the jury to infer insanity at the time the will was executed from the testator's mental condition immediately following the stroke, and without requiring it to find that there was then a settled condition of mental unsoundness. In other words, the jury was told that if it found mental unsoundness two years before, whether habitual or temporary, it could presume that Mr. Kirsher was insane when he executed his will. That such is not the rule is held by our own cases supra, and by the weight of authority. Buswell on Insanity, 213. Lawson on Presumptive Evidence, 179.

The court gave the following instruction: "A number of physicians have been called as medical experts; that is, they have given their opinions, based upon hypothetical questions put to them. You will carefully consider this testimony, and give it the weight you may think it justly entitled to. The weight and value of such testimony depends upon whether the statements of facts, of which such experts have not personal knowledge, but which they accept as true for the purposes of answering the question propounded them, are in material and important particulars correct, fair, and impartial, then such testimony may be of great value, but if you find such statements of facts are in material and important particulars incorrect, unfair, partial, and untrue, then you should attach little or no weight to such testimony." It hardly needs the citation of authority to show that this instruction is erroneous. The practical experience of lawyers and courts has so often demonstrated...