Phillips v. Phillips

• Decision Date: 29 January 1895
• Citation: 93 Iowa 615,61 N.W. 1071
• Parties: PHILLIPS ET AL. v. PHILLIPS.
• Court: Iowa Supreme Court

93 Iowa 615

61 N.W. 1071

PHILLIPS ET AL.

v.PHILLIPS.

Supreme Court of Iowa.

Jan. 29, 1895.

Appeal from district court, Johnson county; S. H. Fairall, Judge.Wheeler & Moffit and Milton Remley, for appellants.

Ranck & Wade, for appellee.

KINNE, J.

1. August 21, 1891, there was filed with the clerk of the district court of Johnson county, Iowa, an instrument purporting to be the last will and testament of Thomas Phillips, deceased, in which he bequeathed to his son, Thomas B. Phillips, $1,000, and the same amount to his daughter, Lizzie Glancy. He devised to William J. Phillips his homestead and other lands, in all about 113 acres of land. To Thomas O'Maley Phillips he devised 73 acres of land. He gave William J. Phillips all the remainder of his property.

Thomas Phillips and Lizzie Glancy, the persons named in the will, contested the probate thereof, upon the grounds of want of mental capacity of the testator, and because it was caused to be executed by undue influence exercised over the testator by J. Mahoney, Richard Kirwin, and others. The cause was tried to a jury upon the issues thus made, and at the conclusion of the testimony for the contestants proponent moved the court to exclude from the jury the issues presented, upon the ground that the evidence was not sufficient to sustain a verdict upon them. The court sustained the motion as to the issue touching undue influence, to which ruling contestants excepted. The motion, in so far as it related to the ground of mental capacity of the testator, was overruled. At the conclusion of all the evidence, proponent moved the court to instruct the jury to return a verdict for him, because the evidence did not show the deceased did not possess a disposing mind and memory, and there was not sufficient evidence upon which to sustain a verdict for contestants. This motion was sustained, and the jury, under the direction of the court, returned a verdict for the proponent, to all of which contestants excepted, as also to the order made admitting the will to probate.

2. There are some 40 assignments of error in this case, based upon rulings relating to the admission and rejection of evidence. As the case must be reversed upon another ground, we shall not review in detail these alleged erroneous rulings. It is proper, however, to say that upon an examination of the entire record we are impressed with the conviction that the trial court was unduly technical in its rulings against contestants, and this suggestion will no doubt prevent the same question from arising upon another trial.

3. The material question in this case is as to the ruling of the court instructing the jury to return a verdict for proponent. While exception is taken to the court's ruling in withdrawing the issue of undue influence from the jury, we do not understand that appellants now seriously question the correctness of the action of the court in that respect. However that may be, there is no question in our minds that the court was justified in holding that no evidence had been introduced warranting the submission of that question to the jury. As to the ruling of the court...