Perkins v. Perkins (In re Perkins' Estate)

• Decision Date: 10 October 1899
• Citation: 109 Iowa 216,80 N.W. 335
• Parties: IN RE PERKINS' ESTATE. PERKINS v. PERKINS ET AL.
• Court: Iowa Supreme Court

109 Iowa 216

80 N.W. 335

IN RE PERKINS' ESTATE.PERKINS

v.PERKINS ET AL.

Supreme Court of Iowa.

Oct. 10, 1899.

Appeal from district court, Warren county; A. W. Wilkinson, Judge.

This is a contest over the probate of the will of Edward Perkins, deceased. Contestants claim that he was not of sound mind and disposing memory at the time the will was executed, and that proponent, who is the main beneficiary under the will, procured the execution of the same by undue influence. There was a trial to a jury, resulting in a verdict and judgment for contestants, and proponent appeals. Reversed.O. C. Brown, for appellant.

A. A. McGarry, for appellees.

DEEMER, J.

Proponent is the widow of Edward Perkins, deceased, who died on February 19, 1897, aged 74 years. The contestants are the sons and daughters of deceased by a former wife. The will involved in this litigation was executed on the 15th day of February, 1897. Prior to that, but during the same year, deceased had executed other wills, which were practically the same as the one now contested. Proponent was a witness in her own behalf, and was asked this question, “State what reason your husband gave for not wanting to leave his property to his children.” An objection on the ground that it was immaterial, irrelevant, and incompetent was sustained. Appellees make no question but that a testator's previous declarations are admissible in support of a will which is impeached, showing dislike or affection for the natural objects of his bounty, or for those favored by him in the alleged will. Indeed, that question is put at rest by In re Hollingsworth's Will, 58 Iowa, 528, 12 N. W. 590;Dye v. Young, 55 Iowa, 435, 7 N. W. 678;Bates v. Bates, 27 Iowa, 110;Stephenson v. Stephenson, 62 Iowa, 165, 17 N. W. 456; and other like cases. In support of the ruling of the trial court it is contended, however, that the evidence was inadmissible because of the provisions of section 4604 of the Code. This position is sound. While the witness is not asked directly as to what her husband said to her personally, yet that is the fair inference from the question propounded, and we should not reverse simply for the reason that it might have referred to a statement made by others in the presence of the deceased. In support of the ruling, see In re Brown's Estate, 92 Iowa, 379, 60 N. W. 659;Palmer v. Palmer, 62 Iowa, 204, 17 N. W. 463.

2. The contestants were permitted to testify, over the objections of proponent, as to the amount of money or property advanced to them by their father prior to his death. Such evidence was admissible. Sim v. Russell, 90 Iowa, 656, 57 N. W. 601. Moreover, the proponent had testified as to certain declarations said to have been made by the deceased with reference to having made certain advancements to his children before making the will under consideration. The evidence now complained of was properly admitted in...