Manatt v. Scott
| Decision Date | 08 October 1898 |
| Citation | 76 N.W. 717,106 Iowa 203 |
| Parties | THOMAS MANATT et al., Proponents, Appellant, v. W. F. SCOTT, et al., Contestants |
| Court | Iowa Supreme Court |
Appeal from Poweshiek District Court.--HON. BEN MCCOY, Judge.
ISSUES joined in the probate of will. Verdict and judgment for contestants and proponents appeal.
Affirmed.
Haines & Lyman and W. R. Lewis for appellants.
John T Scott and H. S. Winslow for appellees.
Wiliam Scott and Eliza, his wife, settled in Poweshiek county in 1849, and resided there until death. William died in 1886 and Eliza ten years later. They had but two children, one of whom, William, died, unmarried, soon after the father. The other son, Robert, died in 1885, leaving, him surviving, his widow and five children, viz. William F., Robert D., Ina Belle, Mary, and Elizabeth Ann Scott. Mary Scott intermarried with L. Reynolds, and upon her death left, surviving, her husband and two children, Robert L. and Scott S. Reynolds. Elizabeth Ann intermarried with Ed. McGinley, and upon her death left, surviving, her husband and two children, Edward Earl and William McGinley. These grandchildren and great-grandchildren of Eliza Scott are the contestants to the probating of her will. It may be added that in 1870 William Scott conveyed to his son Robert three hundred and twenty acres of land, and, by his will, left the remainder of his estate to his wife and son William. This consisted of three hundred and eight-four acres of land and a large amount of personal property, which fell to Eliza under the will and as heir of the son. In 1892 she formally executed a will, bequeathing to her brothers, James, Thomas, and Irvin Manatt and her sister Susannah Gwin all her household goods, beds, bedding, and clothing, "to be divided equally between them, share and share alike," and devising the remainder of her property, real and personal, to the three brothers named. The will also contains this provision: The objections interposed to the admission of this paper to probate are that the deceased, by reason of old age and mental infirmities, had not sufficient capacity to make a will; that she did not comprehend and understand the extent of her property, or those who had claims upon her bounty; that the will was procured by fraud and undue influence exercised by the proponents; and, further, that the fraud and undue influence consisted of poisoning the mind of testatrix, and inducing her to believe that her legal heirs were her enemies, and were plotting to do her bodily harm. The jury found, by their general verdict, and in answer to the special interrogatories, for the contestants. There are sixty-eight assignments of error, and we can be expected to consider in detail those only which seem of the most importance.
I. The motion of the appellees to strike all the evidence, rulings, and exceptions from the abstract is overruled. The practice of incorporating the shorthand notes in the skeleton bill of exceptions has been fully approved by this court. Hampton v. Moorhead, 62 Iowa 91, 17 N.W. 202; Waller v. Waller, 76 Iowa 513, 41 N.W. 307; Hill v. Holloway, 52 Iowa 678, 3 N.W. 722; Gardner v. Railway Co., 68 Iowa 588; McCarthy v. Watrous, 69 Iowa 260, 28 N.W. 586. These are presumed to have been filed in the case, as it was the duty of the reporter to file them. The bill recites that they were filed, and that all the evidence, motions, objections, and exceptions, "having been extended * * * and transcribed into longhand, and certified and filed in due time after such trial by such shorthand reporter, are as follows, to-wit: (Clerk will here copy shorthand reporter's report of the trial in full, as extended, certified, and signed by Blue, shorthand reporter.)" The objection seems to be that the clerk was not directed to copy the original notes. For what conceivable purpose would such a copy be made? None. Whatever the direction, he is expected to copy the transcript made by the reporter. It is said that he might be unable to identify it as that of the particular trial. If it is filed in that case, properly entitled and duly certified, the identification is ample. The appellants seem to lose sight in their arguments of the fact that the reporter is an officer of the court, and will not be presumed to foist an unauthorized transcript on the record. The skeleton bill of exceptions is necessarily imperfect, and its expediency lies in saving the record until time or necessity requires its completion. A translation of the notes may not be required, and, in any event, need not be made, in a suit at law, until necessary for the preparation of the abstract. Kassing v. Ordway, 100 Iowa 611, 69 N.W. 1013; Slone v. Berlin, 88 Iowa 205, 55 N.W. 341. The presumption that the reporter and clerk performed their duties will prevail in the absence of any showing to the contrary, and the record prepared as directed treated as genuine.
II. The point that the instructions are not identified in the bill is not well taken. This was done by referring to them as filed in this case by their numbers, and as duly indorsed by the presiding judge. When so referred to, the clerk will find no difficulty in making the selection.
III. The appellees insist that assignments of error are not as specific as is required. The first fifty-two errors relate to the introduction of evidence. The twenty-sixth assignment is a fair illustration, of all, and is as follows: "The court erred in overruling the proponents' objection to the question propounded to the witness W. W. Woods, as shown in the thirtieth exception at the bottom of page 47 and top of page 48 of the abstract, and also erred in overruling the proponents' objection to the further question propounded to the same witness, as shown on page 48 of the abstract, and in permitting the witness to answer the same." It will be noticed the particular ruling is mentioned, as well as the witness, and the page of the abstract; and it may be added that at the bottom of that page the exception bears a corresponding number. The method pursued is certainly a very convenient one, and enables the court and counsel without loss of time to find, not only the ruling, but the connection in which it is made. It clearly and specifically indicates the very error complained of, and, in so doing, complies with the statute. Code, section 4136. In Wood v. Whitton, 66 Iowa 295, 19 N.W. 907, the errors were not specifically mentioned or pointed out as found in any particular part of the record, and it is there said: "An assignment should plainly state the error complained of, and not refer the opposite counsel and court to parts of the record wherein the objection is said to appear." This language must be construed in connection with the alleged error in that case, and which could only be discovered by the examination of the entire record. It has also been held that resort will not be had to the argument in order to determine the error assigned. Calkins v. Railway Co., 92 Iowa 714; Smola v. McCaffrey, 83 Iowa 760, 50 N.W. 16. In Stove Works v. Hammond, 94 Iowa 694, 63 N.W. 563, stating errors generally in ruling on the admissibility of the testimony of the witness named is held not sufficiently specific. In Hamilton Buggy Co. v. Iowa Buggy Co., 88 Iowa 364, 55 N.W. 496, it is said: What is said in this case aptly applies to that at bar, and we not only hold the assignment sufficient, but approve the method of definitely pointing out the error and the part of the record where it may be found.
IV. William Manatt was asked this question: "You may state whether or not there was any cessation of friendliness on your part towards Mrs. Scott at that time, or was the ill-will all on her part,"--and over objection answered: The time referred to was when she left the farm, in 1886. It is conceded that the feeling of the witness might be shown, but it is said that the ill-will of the decedent ought not to be inquired into. It may be mentioned that the contestants claimed Mrs. Scott was suffering from senile dementia, and, according to the evidence of physicians, this disease is of slow development, and one of the symptoms is a sudden aversion or dislike conceived against those with whom the person afflicted has been on friendly terms. We think it was admissible as bearing upon the condition of Mrs. Scott's mind. She had been on friendly terms with this brother for years, and, as soon as taken from the farm by James and Thomas Manatt conceived a dislike for him. It was part of the history of the case, and one of the circumstances to be considered with others in determining whether she had testamentary capacity.
John Manatt testified that prior to the execution of the will Mrs. Scott had said to him that her daughter-in-law and children gave her husband a dose, and helped him out of the world; that, if she went to their homes, they would treat her likewise; and that Thomas and James...
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