Leveridge v. Evans (In re Evans' Estate)

• Decision Date: 24 May 1901
• Citation: 86 N.W. 283,114 Iowa 240
• Parties: IN RE EVANS' ESTATE. LEVERIDGE ET AL. v. EVANS ET UX.
• Court: Iowa Supreme Court

114 Iowa 240

86 N.W. 283

IN RE EVANS' ESTATE.LEVERIDGE ET AL.

v.EVANS ET UX.

Supreme Court of Iowa.

May 24, 1901.

Appeal from district court, Polk county; C. A. Bishop, Judge.

This is a contest over the probate of the will of B. W. Evans, deceased. Defendants, who are contestants, pleaded that the testator did not have sufficient mental capacity to execute the instrument, and on this issue the case was tried to a jury, resulting in a verdict finding that deceased was of unsound mind at the time the will was executed. Proponents appeal. Reversed.Stewart & Cohen, for appellants.

Brennan & Brennan, for appellees.

DEEMER, J.

The will was executed on the 28th day of October, 1897, and it devised all of testator's property to his four sisters, who at the time resided at Bristol, England. Contestants are the divorced wife and son of the deceased. In order to establish testator's unsoundness of mind, both contestants were allowed to testify to his appearance, conduct, manners, and habits,--which was perfectly proper,--and to give in evidence certain communications made to them by the deceased during his lifetime. These communications were clearly inadmissible, under section 4604 of the Code; and the communications made to the wife before her divorce from her husband were also inadmissible, under section 4606. The difficulty with the case is that the record is not in shape to present these questions. Proponents moved to strike out a certain statement made by the deceased to his wife before the divorce, but gave no reasons therefor; and they also moved to strike out all communications made by husband to wife, without pointing out the communications objected to. The motion was made after the wife had given a great deal of evidence, some of which was competent, as relating to the appearance, demeanor, and conduct of the husband, and some of which was incompetent for the reasons suggested. Such an omnibus motion will not be regarded, especially when, as in this case, no grounds for the motion are stated. Just before the close of Mrs. Evans' direct examination, proponents' counsel made a motion to strike out all communications and statements made to her by deceased, “because she was his wife at the time they were made,” and “because she was a party to the transaction, and it was a personal transaction with deceased.” No objection seems to have been made to the questions that elicited the matters referred to, and no motion was made to strike the answers when given. For this reason alone the motion was properly overruled. The ruling was correct for the further reason that the exact matters referred to were not pointed out in such a manner as that the court could intelligently rule on the motion. The record as to the testimony of the son is even more imperfect. After proponents' counsel had made objections to the certain answers,--not to the questions propounded,--the court said: “You will have to make your objections. Some portions of the testimony may be against the rule; others not.” No further objections were made. In the face of this record, there is manifestly nothing in the rulings on evidence to consider.

2. The trial court failed to number the instructions, as required by section 3708. This...