Mileham v. Montagne

• Decision Date: 05 April 1910
• Citation: Mileham v. Montagne, 148 Iowa 476, 125 N.W. 664 (Iowa 1910)
• Parties: MILEHAM v. MONTAGNE ET AL.
• Court: Iowa Supreme Court

148 Iowa 476

125 N.W. 664

MILEHAM

v.MONTAGNE ET AL.

Supreme Court of Iowa.

April 5, 1910.

Appeal from District Court, Cherokee County; F. R. Gaynor, Judge.

Action to set aside the probate of the last will and testament of John G. Montagne and to set aside the will because of mental incapacity and undue influence.The case was tried to a jury, resulting in a verdict and judgment setting aside the will because of the mental incapacity of the testator.Affirmed.William Mulvaney, for appellants.

J. A. Miller and Herrick & Herrick, for appellee.

DEEMER, C. J.

Appellants assign 46 errors, and it is manifest that it would be impossible in the course of an ordinary opinion to consider each and every assignment; nor is it necessary to do so, for many of them are not argued, and those argued may well be grouped into a few classes or divisions for the purpose of an opinion.The chief contentions made for appellants are that the verdict has no support in the testimony; that the court erred in its rulings on evidence; erred in its instructions given to the jury; and in refusing certain of those asked by proponents.

1.Testator was a German by birth, and, as near as can be told, was 68 years old at the time of his death.He died June 12, 1907, leaving his wife and six children surviving.His heirs were all of age at the time of his death.The will was executed on June 2, 1907, while testator was ill, and was admitted to probate without appearance or contest.This action was commenced June 9, 1908, to set aside the probate of the will and the will itself because of testator's mental incapacity and for the alleged undue influence of certain of the devisees and legatees under the will.The latter issue was not submitted to the jury and need not be considered, save as it may bear upon certain rulings of the court made during the trial.The will gave his widow a life estate in all his property in lieu of dower, provided she remained unmarried, and of the remainder he gave plaintiff the sum of $10, provided for the support of a daughter Annie during her life, appointed a testamentary guardian for her, and gave all the residue of his estate to his three sons and the one daughter not already mentioned by name.In June of the year 1900, testator was adjudged insane and committed to the hospital at Clarinda, from which he was discharged in October of the same year.In August of the year 1893, testator's sister and her husband, who had lived on one of testator's farms near Cherokee, were murdered, and this made a very profound impression on his mind.At one time he laid this murder at the door of his brother, John C. Montagne.This murder prayed upon his mind down to the time of his death and profoundly influenced all his mental processes.He had a sister who was insane, and one of his daughters is mentally incompetent.A great deal of testimony was taken tending to show that testator labored under delusions and hallucinations which were the product of a diseased mind, and testimony both expert and nonexpert was taken upon the condition of his mind.Defendants did not move for a directed verdict, but, on the contrary, in effect asked the court to submit the matter of mental incapacity to the jury, and had a special interrogatory submitted to the jury upon this proposition.This was a practical concession that the case was one for a jury.In re Betts, 113 Iowa, 114, 84 N. W. 975.Aside from this, however, we think the case upon this issue was clearly one for a jury.It is not our custom to set out the testimony upon which we base our conclusions, and no useful purpose would be served in departing from the rule in this particular case.Suffice it to say that there is nothing in defendants' first proposition.

2.Something like 13 rulings on the admission and rejection of testimony are challenged; but we shall only notice those which are deemed important or controlling.Several of the propositions involved have already been decided by this court, and they need not be noticed.Defendants offered to show the personal habits of plaintiff's husband at the time of trial.This in itself was immaterial to any inquiry in the case.The witness had already testified that testator said he did not leave anything by will to plaintiff for the reason that if he did so her husband would spend it all, and that his wife and his boys would take care of her in any event.The inquiry as to the habits of the husband at the time of trial was not important.

One other question put to this witness involved a conclusion as to testator's state of mind at the time he made the will, and that this was manifestly incompetent.Complaint is made of the cross-examination of one of the experts used by defendants.It is said that too great latitude was given, and that hypothetical questions were propounded on this cross-examination which had no foundation in the testimony.It is a general rule that upon the cross-examination of experts counsel are not confined, in putting hypothetical questions, to the facts disclosed by the testimony, and it is also a general rule that a wide discretion is lodged in the trial court in the range of inquiry to be made in cross-examination.Plaintiff was permitted, over defendants' objections, to offer a large amount of documentary evidence.These were notes and records of actions and proceedings in various courts against the testator, sheriffs' deeds, garnishments, warrants of arrest for violation of injunction, etc., covering quite a period of time, but all showing testator's conduct and business transactions for a period of time material to the issue in the case.We discover none which were improperly admitted; in fact, they all bore more or less upon testator's conduct and were a part of his personal history.They were admissible as such.Among other things was the record of commitment to the insane hospital, and also deeds made by testator to various ones of his children after the will was made.These were surely admissible.Counsel for appellant does not point out any specific document which he thinks was inadmissible, and we shall not look through the great number complained of en masse to see if any special one was inadmissible.

Plaintiff was permitted to prove, over defendants' objections, the circumstances of the Schultz murder, which is the one already referred to, and some of the details connected therewith.This was done after plaintiff's promise to show that testator knew of all the things disclosed by the witness, and that these matters had an effect upon testator's mind.In this there was no error.If plaintiff did not come forward with the promised proof, defendants' remedy was to move to strike.This was not done, manifestly for the reason that plaintiff made the promise good.In any event, however, defendants may not complain of the rulings.Plaintiff was permitted to prove the effect of the Schultz murder upon testator's mind.This was clearly competent, although the murder occurred something like 13 or 14 years before the will was drawn.If the witnesses are to be believed, this murder was a great mental shock upon testator's mind, and was the producing cause of his mental disorders.It was competent, then, to prove that fact.

Another witness was permitted to prove what took place between himself and the testator while he was taking him (testator) to the insane hospital.Although this was something like seven years before the making of the will, the testimony was proper and competent.It tended to show testator's mental unsoundness at that time, and his condition at that time was material, even though it appears that he was subsequently discharged from the hospital under the belief that he was restored to sanity.State v. Felter, 25 Iowa, 68.Insanity, once established, is presumed to continue until the contrary is shown.In re Knox's Will, 123 Iowa, 24, 98 N. W. 468.Of course, discharge from the hospital is evidence of a change in mental condition; but it is not conclusive.The finding of lunacy and the commitment to the hospital were admissible in evidence, as also was the discharge; neither, however, being conclusive.We discover no prejudicial error in the rulings on evidence.

3.The complaints regarding the instructions largely revolve around the central thought advanced by defendants' counsel to the effect, that, if testator was unsound of mind, his insanity was not chronic, but partial.The testimony offered by contestant tended to show chronic or general insanity, and not partial with lucid intervals; but, even were this not so, the trial court instructed that the burden was upon contestant to show testator's mental unsoundness at the very time the will was executed.

Going now to the specific instructions...