McBride v. McBride

• Decision Date: 08 April 1909
• Parties: JOHN MCBRIDE, THOS. MCBRIDE and MARY STEIL, Appellees, v. PATRICK MCBRIDE, Appellant, and JAMES MCBRIDE, ANNIE GODDARD, JULIA MCBRIDE, BELLEE MCBRIDE, ANN MCBRIDE and ELLA GODDARD, Appellees
• Court: Iowa Supreme Court

120 N.W. 709

142 Iowa 169

JOHN MCBRIDE, THOS. MCBRIDE and MARY STEIL, Appellees, v. PATRICK MCBRIDE, Appellant, and JAMES MCBRIDE, ANNIE GODDARD, JULIA MCBRIDE, BELLEE MCBRIDE, ANN MCBRIDE and ELLA GODDARD, Appellees

Supreme Court of Iowa, Des Moines

April 8, 1909

Appeal from Palo Alto District Court.--HON. W. B. QUARTON, Judge.

THIS is an original action to set aside the probate of a will. There was a verdict and judgment against the validity of the will and the probate thereof was set aside. The defendant Patrick McBride appeals.

Affirmed.

Thos O'Connor and Soper, Morse & Soper, for appellant.

E. A Morling and Davidson & Burt, for appellees.

OPINION

EVANS, C. J.

James McBride, late of Palo Alto County, died March 25, 1901, leaving surviving him Ann McBride, as widow, and the other defendants and plaintiffs in this action, his children. The latter are also children of Ann McBride. In July, 1901, an instrument, bearing date February 16, 1901, and purporting to be the last will and testament of said James McBride, was admitted to probate after notice by publication. This action was brought to set aside such order of probate. The ground alleged is a want of mental capacity on the part of James McBride to make a will.

I. After the opening of the term at which the case was noticed for trial, and after a day had been fixed by the court for the trial with the consent of the attorneys on both sides, the defendants moved for a continuance of the case over the term, for the reason that the health of the defendant Ann McBride would not permit of her attendance as a witness. The motion was overruled, and the appellant complains of such ruling. The record discloses that the motion was not filed until the eve of the trial. The only excuse offered for the delay in filing the motion was that defendant Patrick McBride had neglected to advise his attorneys of the condition of his mother's health. The evidence taken on the motion made it appear that Mrs. McBride was an aged lady, and that she was suffering from senile dementia. Her attending physician testified that she was not in a mental condition to appear and give testimony, and he stated to the court: "I can give no assurance that she will be better mentally." Moreover, counsel for plaintiffs offered to admit that Mrs. McBride, if present, would testify to the matters stated in the application. Mrs. McBride had been in the condition described for three months prior to the term of court. The trial court, therefore, properly overruled the application for a continuance.

II. Many rulings on evidence are complained of. We shall notice only such thereof as are discussed in argument. Mary Steil, one of the plaintiffs, was called as a witness on behalf of plaintiffs. On the issue of mental incapacity she was asked: "Q. Did you hear your father say anything in conversation, in which you did not take part, in reference to his [land] corners? A. Yes; he said about them moving his corner stakes; that he thought his neighbors had all joined, and could move his corner stakes. Q. Did he say how they did it?" An objection to the competency of the witness being overruled, she answered: "A. By witchery." The objection to the question was predicated on Code, section 4604. The question objected to had relation back to the former question, and guardedly called for a conversation overheard by the witness. Erusha v. Tomash, 98 Iowa 510, 67 N.W. 390; Mallow v. Walker, 115 Iowa 238, 88 N.W. 452; Powers v. Crandall, 136 Iowa 659, 111 N.W. 1010. Counsel for defendant was then permitted to examine the witness as to her competency, and she answered: "I am not testifying to what my father told me, just what I heard him say. Q. Were the conversations you have referred to had between you and your father? A. Well, he was talking to all the family there, whoever were there." Counsel for plaintiff then resumed: "Q. I am asking you for conversations and statements of your father not addressed to you, and in which you did not take part." To this question the same objection was interposed and overruled. There was no error in this ruling. It would have been quite proper for the court to instruct the witness respecting the limits to which she should confine herself in answer. This, however, was not requested by either party. The question itself was a proper one. Other questions relating to other occasions, and similarly guarded, followed, and the same objection was interposed to each and overruled. So, also, the other parties plaintiff were called as witnesses, and in like manner interrogated, and permitted to answer over the objections of the defendant. What we have already said is applicable to the several contentions for error arising therefrom.

It should be said, however, that some of the answers of some of these witnesses occasionally went beyond the question, and they testified to statements of the deceased which were addressed to themselves. These statements had no proper place in the record, and the defendant was entitled to their elimination. His motion to strike, however, was usually made at the close of the testimony of the witness, and was broad and sweeping in character, and did not point out the particular evidence objected to.

There is the further consideration that the witnesses were being examined on the question of the mental capacity of the testator, and the general purport and purpose of their testimony was to describe the conduct of the testator as they observed it, including his acts and words, and as bearing upon his mental condition. It appears from the testimony that the testator talked much to himself. He asked questions, and answered them himself. The whole trend of the testimony as to the conversations of the testator was for the purpose of depicting therefrom his mental condition. The fact that the witnesses sometimes overstepped the line, and that some of the conversations testified to appear to have been addressed to them, did not add anything to the significance of the testimony for the purpose for which it was given and received, and no prejudice could result therefrom. If the objectionable testimony involved an alleged promise or admission of the deceased, liability for which was attempted to be charged against his estate, a different situation would be presented so far as the question of prejudice is concerned. We think, therefore, that whatever technical errors occurred in the testimony of these witnesses along this line, they were clearly non-prejudicial, and would not justify us in reversing the case.

III. As the direct examination of plaintiff Mary Steil drew to a close, she was asked to give her opinion based upon the facts testified to by her as to the mental condition of her father on or about February 16, 1901. This question was objected to on the ground that the witness did not see the testator on February 16, 1901, and was therefore not competent to give an opinion as to his mental unsoundness on that date. It is doubtless true that a nonexpert witness is competent to give his opinion as to the mental unsoundness of the testator only at the time of the observation to which he has testified. Blake v. Rourke, 74 Iowa 519, 38 N.W. 392. Inferences as to the mental unsoundness of the testator at some prior or subsequent date are usually to be drawn by the jury, and not by the nonexpert witness. The rule of evidence is somewhat broader as applied to a nonexpert opinion offered in support of mental soundness than as applied to such opinion offered to prove mental unsoundness. Hull v. Hull, 117 Iowa 738, 746. In the case at bar, however, the witness saw her father frequently, both before and after ...