Kostelecky v. Scherhart

• Decision Date: 13 October 1896
• Citation: 68 N.W. 591,99 Iowa 120
• Parties: ALICE KOSTELECKY v. ROSA SCHERHART, et al., Appellants
• Court: Iowa Supreme Court

68 N.W. 591

99 Iowa 120

ALICE KOSTELECKY v. ROSA SCHERHART, et al., Appellants

Supreme Court of Iowa, Des Moines

October 13, 1896

Appeal from Johnson District Court.--HON. S. H. FAIRALL, Judge.

THIS is an action to set aside and vacate a last will and testament purporting to have been made by Ann M. Broshart, deceased. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal.

Affirmed.

Ranck & Bradley for appellants.

J. A Edwards, George A. Ewing, and Remley & Ney for appellee.

OPINION

ROTHROCK, C. J.

It appears from the pleadings and evidence, that Ann M. Broshart made and executed a will on the twenty-eighth day of September, 1886. She made another will on the sixteenth day of August, 1892, and died on the next morning, about 6 o'clock. She was sixty-five years old, and had been out of health for about one year. She was confined to her bed for several weeks prior to her death, and at the time the last will was made she was in an extremely weak condition. The will in question contained a clause revoking former wills. The first will was not presented for probate prior to commencing this suit. The last will had at that time been formally probated. The plaintiff is not an heir at law of the deceased, and she has no interest in the estate, unless the first will is held to be a valid instrument. The petition sets forth the facts attending the execution of both wills, and it is claimed therein that the last will is invalid, because the deceased was incapable to dispose of her property by will, by reason of the want of testamentary capacity. It is also alleged in the petition, that the will was procured by undue influence. This last ground for setting aside the will, was taken from the jury, there being no evidence in support of that ground of contest. The case was tried in the usual way, with the testimony of persons who were present at the time the last will was made, and the testimony of other witnesses who saw and observed the condition of the testatrix for some time before that, and of others, who were present when she died. Then there was the usual hypothetical questions made upon each side of the contest, and physicians were called as witnesses, and the hypothetical questions were read over to them, and they were interrogated as to their opinions touching the mental condition of the testatrix. Many objections are made to the rulings made by the court, pending the trial. It is proper to say, before proceeding to consider such objections by appellants, as we think demand separate consideration, that the evidence in the case is such that the jury might well find, as they did, that the deceased had not mental capacity to make a valid will on the day before she died. We need not repeat the testimony of the witnesses.

The first matter proper to be considered arises upon the question of the right of the plaintiff to contest the will. If she had no right to any of the property, and if the last will was invalid, she was in no position to question the will. As we have said, she by her petition presented both wills to the court, claiming that the first was valid and the last was void. She introduced evidence, over the objection of the defendants, from which it appeared that the first will was duly executed. Indeed, as we understand it, she proved every fact necessary to probate the first will, if the second will had not been in the way. The defendants objected to this evidence, and raised the same question in a motion in arrest of judgment; that is, the defendants claimed from first to last that the plaintiff could not contest the will, because she was not an heir of the deceased, and the first will had not been admitted to probate. We think, under the facts, the court did not err in admitting the evidence as to the due execution of the first will, and in overruling the motion in arrest of judgment. It is very doubtful whether the plaintiff would have had any standing in court if she had presented the first will for probate, as an independent proceeding. The two wills were inconsistent, and when the last one was probated the first one could only be presented for probate in connection with a proper action to set aside the probate of the last will. That was, in effect, what was done in this case, when the pleadings and evidence are considered together. It is true, the petition in the case was not drawn with the skill of an expert pleader. But it sufficiently appears therefrom that plaintiff presented the first will, and claimed that she was the owner of certain property under that instrument, and that the last will was void. The cases cited by counsel for appellant on this point do not appear to us to be applicable to the question. There is no doubt that, where it is sought in an action to establish title in real estate under a will, it is necessary to show by proper statutory proofs that the will has been admitted to probate, and that is the effect of the cases cited.

II. The person who prepared the last will was the principal witness in behalf of the plaintiff. Others were present, and all admitted that the testatrix was then in an extremely feeble condition. If the scrivener who wrote the will testified truthfully, there is no doubt that the verdict was right. And there was testimony of other witnesses which tended strongly to corroborate the writer of the will. On the other hand there were other witnesses who testified that the testatrix was able to talk connectedly, and to fully understand what was said to her, and to comprehend what she did. A great many objections were made to questions asked by plaintiff's witnesses, touching what occurred in the sick room on that occasion, and the objections were mostly overruled. Under ordinary circumstances, some of these questions, and the evidence elicited thereby, might be said to be incompetent, because they were not conversations with the dying woman, but appear to have been between those who were present. We discover no error in any of these rulings. The woman was in extremis, and what occurred in that chamber was so connected with her...