Liddle v. Salter

• Decision Date: 26 June 1917
• Docket Number: No. 31233.,31233.
• Citation: 180 Iowa 840,163 N.W. 447
• Parties: LIDDLE ET AL. v. SALTER ET AL.
• Court: Iowa Supreme Court

180 Iowa 840

163 N.W. 447

LIDDLE ET AL.

v.SALTER ET AL.

No. 31233.

Supreme Court of Iowa.

June 26, 1917.

Appeal from District Court, Black Hawk County; C. W. Mullan, Judge.

Sarah C. Gracely died testate August 20, 1914. The admission of her will to probate was contested and it set aside. The proponents appeal. Affirmed.M. J. Butterfield and Mears & Lovejoy, all of Waterloo, for appellants.

Sager, Sweet & Edwards, of Waterloo, for appellees.

LADD, J.

Charles Gracely died January 3, 1914, leaving no issue, but property valued at less than $7,500. This descended to his wife, Sarah C. Gracely, who died August 20th of the same year. She left personal property and realty, the latter estimated at $22,000, and in her will devised her home, valued at $6,000, to Maude E. Salter, an insurance policy on her life to her brother, Arnold Liddle, and directed that her executor reduce all other property to money and, after discharging debts, pay the First Church of Christ in Waterloo $300, Vance and Myrtle Salter, children of Maude E. Salter, $200 each, and directed that the residue be divided so as to give a sister of her husband one-third, a sister one-third, and one-ninth each to a nephew and two nieces of her deceased husband. Maude E. Salter was designated as executrix. Upon the filing of this will a brother, sister, and son of a deceased sister filed objections to its admission to probate on the grounds that the testatrix was of unsound mind at the time of signing the will, and that it was procured through the undue influence of Mrs. Salter and her children. Exceptions are taken to 22 rulings on the admissibility of evidence, two instructions, the giving of two special interrogatories and overruling a motion to direct a verdict for proponents.

[1] I. The sufficiency of the evidence to sustain the verdict may as well be disposed of at the outset and first as to the evidence of undue influence. The record is without direct evidence, as is usual in such cases, but the circumstances were such as to rightly carry this issue to the jury.

Decedent and her husband were without issue, their only child having died in infancy. Besides a brother and sister, mentioned in the will, a son of a deceased sister survived testatrix. Immediately after the death of her husband, her brother insisted that she take up her residence with him, but she could not leave the old home. She invited Mrs. Breynan to live with her, but the latter declined, owing to then having a broken arm. Miss Steinel came from Mrs. Salter's to stay with her a short time. On January 16th, less than two weeks after her husband's death, P. C. Ritz, an attorney, an acquaintance of Mrs. Salter, was invited by telephone to call at her house. As decedent did not know him, it is fairly to be inferred that the message was from Mrs. Salter. After some talk decedent directed Ritz to prepare a power of attorney, which he did, and she executed it three days later. It conferred upon Mrs. Salter power:

(1) To execute to other persons leases on any and all my real properties, which I may from time to time offer for rent. (2) To ask, demand, and sue for, collect and receive money and personal property for rents now due or which may become due on all leases, oral or written, on all my real property, given by me or my duly appointed agent to other persons. (3) To order, purchase, and contract for such materials and labor as shall be necessary to make all necessary repairs and improvements on any or all of my real and personal property. (4) To guard and protect my interests in any and all of my property, both real and personal. (5) To sign checks on my deposits in the Security Savings Bank of Waterloo, Iowa, as follows: “Mrs. Sarah C. Gracely, by Mrs. Maude E. Salter, Her Agent”--for amounts due from me for taxes and insurance on my real and personal property for amounts due on account of repairs and improvements to my real and personal property, for amounts due on account of groceries, meats, clothing, and all other necessities ordered by me. (6) It shall be the duty of Mrs. Maude E. Salter to deposit in my name all sums of money due me and belonging to me and collected by her from rents and otherwise in the Security Savings Bank of Waterloo, Iowa. It shall be her further duty to keep all money belonging to me entirely separate from her own money. She must keep and render account of money and personal property received and paid out by her on my account and render an account to me when required. It shall be the further duty of this my agent to keep me posted as to all matters touching upon the premises--giving and granting unto my said attorney full power and authority to do and perform each and every act and thing whatsoever required and necessary to be done in and to the premises as fully as I might do or act, if personally present, reserving the right to revoke this power at my pleasure. And I hereby ratify and confirm all that my said attorney may legally do in the said premises by virtue hereof.

The record does not indicate whether Mrs. Salter had had business experience to commend the reposing of such confidence. Certainly their previous relations furnish no explanation of what was done. It appears that decedent had been jealous of Mrs. Salter prior to the death of Gracely, at one time directing when he was sick that she be locked out of the house, remarking that all she wanted was “to come and rub Charles' leg for him.” In view of this situation it is hardly to be supposed that decedent, without the exercise of considerable influence, would have placed all her property in Mrs. Salter's control. But the control of the property did not suffice; and in February following, Ritz, as is testified by him, negotiated in decedent's behalf with Mrs. Salter, and, in pursuance of an understanding reached, prepared a lease for decedent's home for one year at a rental of $30 per month, and also a contract by the terms of which Mrs. Salter was to give decedent the use of a room therein, the freedom of the premises, care and board, and services under the power of an attorney, and in consideration thereof decedent was to pay her $75 per month. It should be added that Mrs. Salter had previously talked the matter over with decedent. These contracts were signed March 6th, and Mrs. Salter took possession on March 26th. On May 8th a new lease and a new contract for board and care for a period of five years, though not to extend after the death of either party, were executed. But previous to this on April 17th care of property and person had culminated in the execution of the will in controversy. It also was prepared by the attorney selected by Mrs. Salter for the decedent, and he appears to have rewarded one of those witnessing the signing of the will by paying him $10 and the other $5. Calls of the neighbors on Mrs. Gracely became less frequent. There was evidence that upon leaving the house on several occasions Mrs. Salter locked decedent in.

The record also contains evidence of declarations of Mrs. Salter. Mrs. Breynan testified to a conversation with Mrs. Salter in which she was asked:

“Was there anything said at that time by Mrs. Salter in the presence of Mrs. Gracely about making a will? A. Yes, sir. Q. Go ahead and tell the jury what was said. A. Mrs. Salter said she advised her to make a will, and when she made one to make it ironclad, and if she had three witnesses it couldn't be broken. Q. Do you remember any other conversation at that time, in presence of Mrs. Gracely? A. Mrs. Salter told Mrs. Gracely that Mr. Gracely told her that if he should die first he would like to come back in a few days and see how Mrs. Gracely's relatives were scrapping for her money trying to get it away from her.”

This might well have been construed not only as advising the execution of a will, but with the design of prejudicing decedent against her relatives. Again Mrs. Roebuck testified that she once remarked, “Mrs. Salter, it was very nice of you to go over and take care of Mrs. Gracely,” to which the latter responded, “If there hadn't been something in it for me, I never would have come.” This answer may have referred to the mere matter of compensation agreed upon, or in view of the liberal remembrance in the will to what she expected from other sources, and was for the jury's consideration. The threat of Ritz by writ of injunction to keep decedent's brother from the premises, with Mrs. Salter and decedent standing by without objection, and his services on the several occasions in preparing, if not assisting, in procuring the several instruments; and in connection with these matters, the condition of decedent's mind is to be considered, the inequalities of the will, as later discussed, the obligations, or lack thereof, of decedent to Mrs. Salter, their former relations, the rapidity with which Mrs. Salter acquired control of her property, the manner of accomplishing this, the care of her person, and the execution of the will with large devise to her. No little difficulty would be experienced in explaining the course of events on any rational theory other than that Mrs. Salter exercised a dominant influence over decedent from the first. That a fiduciary relation existed between testatrix and the beneficiary did not raise a presumption of undue influence. A statement to the contrary found in Cash v. Dennis, 159 Iowa, 18, 139 N. W. 920, is inaccurate and may be withdrawn from the opinion without changing the result. Something more is essential to justify that opinion, such as participation in fixing the terms of or drawing the will and the bestowal therein of something more than a mere remembrance. Graham v. Courtright, 161 N. W. 774.

[2] But the relationship of the parties is appropriate for consideration, and that Mrs. Salter had control of decedent's person and property, and that she was in feeble health, with mind impaired, indicated that she was peculiarly susceptible to such...