Monahan v. Roderick

• Decision Date: 12 March 1918
• Docket Number: 31843
• Citation: 166 N.W. 725,183 Iowa 1
• Parties: JOHN S. MONAHAN et al., Appellants, v. ROSE RODERICK et al., Appellees
• Court: Iowa Supreme Court

166 N.W. 725

183 Iowa 1

JOHN S. MONAHAN et al., Appellants, v. ROSE RODERICK et al., Appellees

No. 31843

Supreme Court of Iowa, Des Moines

March 12, 1918

Appeal from Polk District Court.--CHAS. A. DUDLEY, Judge.

THIS is a contest over the will of Ann Monahan. The proponents are two sons of the testatrix, and the contestants, two daughters. There was a verdict for the contestants. The proponents have appealed.

Affirmed.

Cummins Hume & Bradshaw, Hugh Brennan, and Frank T. Jensen, for appellants.

J. H Patton, for appellees.

EVANS J. PRESTON, C. J., LADD and SALINGER, JJ., concur.

OPINION

EVANS, J.

I.

The activities of the litigation and of the trouble leading up thereto have been conducted mainly by John S. Monahan, for the proponents, and by Rose Roderick for the contestants. The testatrix died at Des Moines, in January, 1916. The will under contest was made June 29, 1915. The property involved consists, in the main, of a 200-acre farm in Adair County, where the testatrix had lived for many years. She was over eighty years of age at the time the will was made. She was of strong character in her day, but was unlearned, and unable to read and write. She had been a widow for some years prior to her death. She had six children: Tom, William, Peter, John, Rose, and Mary.

The contest of the will was based upon two grounds: (1) That the testatrix was mentally incompetent to make a will; (2) that she was unduly influenced, more particularly by her son John S. Monahan. Both issues were submitted to the jury, and a general verdict rendered in favor of the contestants. In April, 1915, a guardian had been appointed for the testatrix, and the guardianship was in force up to the time of her death.

The first ground of reversal urged by the appellants is that there was no evidence of undue influence, and that such issue should not have been submitted to the jury. It is conceded that there was sufficient evidence to go to the jury on the question of mental competency, and especially in view of the presumption obtaining by reason of the guardianship proceeding. In January, 1915, the testatrix had made a will, whereby she devised her property equally among her six children, who were, at that time, all living. Her son William was under guardianship in another part of the state, and account of that fact was taken in making provision for him. Her son Tom lived in Polk County. John lived in Seattle, Washington, and Peter, in Canada. The daughter Rose lived in Polk County, and the daughter Mary in Adair County. For some years, the testatrix and her son Tom had made their home with the daughter Rose, in Des Moines. The son Tom looked after his mother's business, and aided her in all necessary ways. More or less aid was also rendered by the daughter Rose. In the spring of 1915, the son Tom became sick, and died from his illness on May 13th. The son John left home about twenty years ago. He was for four years in the navy, and sailed the world. Afterwards, he took up his residence at Seattle, Washington, and engaged in various occupations there, being at last a member of the fire department of that city. He made occasional visits to his mother. About the first of April, 1915, he visited her at the Roderick home. This was at the time of Tom's illness, and such illness was partly the occasion for the visit. John's own evidence, as a witness, shows him to have been aggressive in temperament, and very suspicious of his sister Rose. He had been quite active in correspondence in demanding from her information as to the state of his mother's affairs, and had been quite resentful at the meagerness of the information received. The following, quoted from his own testimony in chief, is illustrative of much that transpired between him and his sister, which culminated in the will of June 29, 1915.

"Before this time, Rose and I had a quarrel through a letter. They claimed they were going to keep it for evidence against me. I hope they do. That was before I came home this last time, with reference to the affairs of my mother. Exhibit No. 3 and Exhibit No. 3-A are a letter written to me by my sister Mrs. Roderick, with reference to what I had been asking,--a letter as to what was going on. I asked Mrs. Roderick some question which she did not answer. This letter, Exhibit No. 3, will refer to a couple of letters dated some time earlier, where I intended to show that I asked questions which I did not think were answered when they should have been. Rose had not been answering letters as I thought she should, and I was suspicious that she was not telling mother what I wanted her to; so I wrote a letter to Miss Mame Curry (her name is Mrs. Frankson now). Inside, I had a letter addressed to mother, and I asked her to read mother that letter, and to get mother's answer and write me. Some way, Mrs. Roderick got the letter, and Exhibit 3 is her answer back. In this letter I wrote to mother through Mame Curry, I asked who was doing mother's business, and asked concerning some money she had,--how much money she had in the bank. I think the letter was dated about the fore part of December, 1914, and I said that I was suspicious that there was some crooked business going on; that I could not accuse anybody of doing anything out of the way, but Rose had not answered my letters promptly to the questions that I asked, and I thought I was entitled to know that."

He arrived at his sister's home on the first of April, and spent several days there. He accused her freely of wrongful conduct, professed his suspicious, demanded explanations, and accepted none. He rented a house for his mother in another part of the city, and he and his mother occupied the same for nearly three months. They left the Roderick home about the 7th or 8th of April. According to his testimony, he took charge of his mother's business; he found the balance in the bank too small; he found many checks which he could not understand, and which his mother did not understand. He talked bitterly concerning his sister to his mother; he asked her about her will and asked her to send to Adair County for it. The will under consideration was made June 29, 1915, by a reputable attorney. John was not present when it was made. Its provisions gave the property to the four children other than Rose. On July 1st, mother and son started on a trip to Canada to the home of Peter, where John left her and returned to Seattle. The testatrix stayed at Peter's home until December, when she returned to Des Moines, and died there, a month later. The foregoing is a mere outline of what appears from the testimony of the proponent John. There are many other details, upon which we cannot dwell. Sufficient to say that we think the evidence was sufficient to justify a submission to the jury of the question of undue influence. And this is especially so because of the conceded sufficiency of the evidence to show mental weakness. Conduct which might be insufficient to unduly influence a person of mental strength might be sufficient to so operate upon a failing mind. That John had the willing spirit in that direction is beyond debate, upon this record. The fact of undue influence must largely be proved, as a rule, by circumstantial evidence. There are too many significant circumstances in this case to have warranted a directed verdict for the proponents on that issue.

II. The witness Rose Roderick was permitted to testify as follows:

"Q. What is the fact, Mrs. Roderick, as to the kind of influence Jack (John) had in regard to your mother, whether great or small? A. Well, certainly it was great."

This question was objected to, as asking for a conclusion of the witness; and the objection was overruled. Complaint is now made of such ruling. It is strongly urged that the answer of the witness was a mere opinion or conclusion on her part. We are disposed to the view that the appellant's point is well taken. In the state of this record, however, the point is entirely technical, and without prejudice. The border line between fact and conclusion is not very well defined. Facts, so called, usually involve some degree of opinion and conclusion. Naturally, the border line questions are troublesome. The question here is close to the border line. The form of the question is, of course, less objectionable than if it had asked whether John had influenced his mother to do a particular act. Upon the record in this case, it appears, practically without dispute, from the testimony of both sides, including that of the proponent as a witness, that he did have great influence upon his mother. This is not saying that it was sinister or wrongful. Neither did the question objected to imply that. Concededly, the mother turned over to John all her business, stated to various persons that she had done so, and trusted him implicitly. The fact, therefore, that this witness was permitted to say that John had great influence over his mother, added nothing substantial to the evidence, and could not fairly be deemed prejudicial, in any sense.

III. The proponent called John S. Monahan in surrebuttal. The following occurred:

"Q. What do you know, if anything, about your mother getting the money on those checks you have testified to? (Objected to by contestants as not surrebuttal. Objection sustained. Proponents except.)"

Later, during the examination of the same witness, the following occurred:

"Mr Gwin: Now we offer, read, and introduce in evidence the checks from 5 to 45, inclusive.

"Mr. Patton: They are objected to as not surrebuttal, incompetent, irrelevant, and immaterial.

"The Court: You may offer and read in evidence those checks which he identified as the checks which he showed Mrs. Roderick that morning.

"Mr Fagan: Exhibits 29, 38, 35, 33,...