Perkins v. Perkins

• Citation: 90 N.W. 55,116 Iowa 253
• Parties: PERKINS v. PERKINS ET AL.
• Decision Date: 10 April 1902
• Court: United States State Supreme Court of Iowa

116 Iowa 253

90 N.W. 55

PERKINS

v.PERKINS ET AL.

Supreme Court of Iowa.

April 10, 1902.

Appeal from district court, Warren county; J. H. Appelgate, Judge.

A paper purporting to be the will of Edward Perkins, deceased, being offered for probate, its admission was contested by the defendants, who are the sons of the testator. Trial to a jury, verdict for the defendants, and plaintiff appeals. Reversed.O. C. Brown, for appellant.

Henderson & Berry, for appellees.

WEAVER. J.

Edward Perkins died February 19, 1897. He had been twice married. His children, who survived him, were all the fruit of the first marriage, of mature age and settled in separate homes of their own. He had been an active, energetic man, and accumulated a moderate property, which before his death had been somewhat reduced by an unprofitable experience as a country merchant. At the time of his death the value of his estate is variously estimated at from $2,000 to $4,000. His first wife died March, 1891, and within a few months thereafter he married the plaintiff. This marriage was evidently distasteful to his children, and the relations between them and their father were thereafter somewhat strained, though not entirely hostile. At the time of the second marriage he was about 69, and the plaintiff about 48, years of age. An antenuptial contract was entered into between them, by which the interest of the survivor in the property and the estate of the other was limited to a life estate. On March 1, 1892, by a writing jointly executed by them and entered of record, the antenuptial contract was annulled and canceled of record. During the last few years of his life Mr. Perkins' health became somewhat broken, although continuing in active charge of his business. In November, 1896, in apparent realization that his death could not long be postponed, he made a will, by which, after providing for the sale of a certain tract of land for the payment of debts and discharge of liens, he gave the remainder of his estate to his wife. About February 5, 1897, he called in the person who had written this will, and executed another, identical in form with the first, except the insertion of a clause therein giving to his children, naming them. the sum of $1 each. Ten days later, and four days before his death, he again called the notary, and expressed a wish to appoint his wife as executor in place of the person formerly named for that trust, and, being advised to make a new will instead of amending the old one, another was drawn and executed, making the same disposition of his property as before. The instrument last mentioned is the one tendered for probate. The contest is based upon two allegations: (1) That at the time of the execution of said will Edward Perkins was of unsound mind, and incapable of making a valid will; (2) that the execution of said will was procured by fraud and undue influence, exercised over the testator by his wife, Rebecca Perkins. This controversy was before this court upon a former appeal, and is reported in 109 Iowa, 216, 80 N. W. 335. Judgment upon a verdict for the defendant was there reversed, and in remanding the case for a new trial it was said, “If the contestants have no other or different evidence from that adduced upon the trial in the district court, they will save themselves trouble and expense by withdrawing their objections to the probate of the will.” Accepting this suggestion, three of the contestants withdrew further opposition, but the other two, proceeding to a new trial, obtained a verdict, and are again here as appellees. Is their verdict sustained by any other or different evidence than was before us on the former appeal? We are compelled to say it is not. It is true several new witnesses were examined on behalf of the contestants, but their testimony is in no proper sense other or different than was produced upon the first trial. Many of the matters sworn to by these witnesses are of a trivial and inconsequential character; nor is any of it so inconsistent with the existence of sound mind and freedom of will in the testator as to justify a verdict rejecting his will. We will briefly advert to the two propositions presented by the contest:

1. As to the alleged want of testamentary capacity in Edward Perkins at the date of the will: Of the 29 witnesses produced by the contestants, 12, including old neighbors, acquaintances, and members of the family, do not attempt to express any doubt of his soundness of mind. Of the other 17, nearly all speak with much apparent caution, or so qualify and explain the opinions expressed as to afford no ground upon which this objection to the will can be sustained. They tell that he seemed to change somewhat with increasing age; that as his physical strength waned there was a perceptible weakening of his mental vigor; that he was at times forgetful; was childish; got into many lawsuits; when speaking of the probability of approaching death, shed tears; was not on as pleasant and affectionate terms with his children as formerly; became confused in attempting to compute interest on a note; on the day before the will was made (as one witness testifies) he failed to recognize an old acquaintance; in the night after the will was made he was in a semicomatose condition. These things, and a few others more or less irrelevant, make up the defendant's case. Giving it all credence, it is insufficient to overthrow the presumption of sanity which the law raises in favor of the testator. Several of the witnesses were permitted to say that in their judgment the testator was not capable of making a valid will. Waiving any question as to the propriety of this kind of testimony, a full reading of the record discloses how worthless it is in the present case. While, as every lawyer knows, a man may be capable of making a good will after he is so far gone in imbecility and mental darkness as to be no longer capable of making a valid deed or of transacting business generally, the very opposite conclusion seems to pervade the lay mind, and the making of a will is, to its apprehension, the one item of business which requires the presence of all one's faculties in their normal strength. Of the witnesses expressing their opinion as to Mr. Perkins' incapacity, not one undertakes to pronounce him insane. For example: J. W. Burkhead, who thus answers further, says, “I testified I did not hardly think he was competent to make a will, but did not mean to say that he could not attend to business in a general way.” John H. Thomas, who gives it as his judgment that “for the last two or three years of his life” he was not of sufficiently sound mind to make a will, admits that, so far as he could observe, Perkins “attended to the ordinary transactions of life, and, by himself and through his agents, looked after his matters, collected his interest, bought property and superintended his matters in general.” Theodore Young says, “I knew he had been loaning money, making collections, attending to his own affairs, and seemed to be able to do so.” H. P. Shepard says, “His condition was like most old men * * *. The difference or change I noticed in his business faculties was the difference between an old man 75 or 80 years old and one of 35 or 40 or 50 years * * *. If Mr. Perkins was not sick, he was as competent to make a will as any man 75 or 80 years old.” B. S. Burkhead, who gives an unfavorable opinion of his condition to make a will, also says, “I think in ordinary matters he could attend to them all right. * * * I think he would have been able to remember his wife and children, and had knowledge of his property.” Dr. Baker, whose first visit to the testator was on the night after the will was made, says that during his visits the testator was not in condition to transact business, but also says that he may have been competent during the day when the will was made, and “may have been competent up to a few hours before I saw him.” The most that Mr. J. T. Meek says is that the “old man was pretty badly knocked out, and was not near the man he was in an earlier day.” David Lockridge, who transacted business with him in January before his death, and thinks “he was not capable of doing business,” says, “He was in pretty bad shape,--I mean he was a pretty sick man. He would have done it all right if he had been in health.” James W. Durham, who visited Mr. Perkins a week or so before his death, and saw him sit up in bed and undertake to compute interest on a note, but, becoming confused, called for assistance, says, “The old man was pretty weak in body, and I think myself his mind was not so strong as it might be. He was weak in body, and it seemed like when he tried to do any kind of business it kind of worried him. In some things his mind seemed to be all right, but it seemed that he was not strong enough in his mind...