Primmer v. Primmer
| Decision Date | 08 October 1888 |
| Citation | 75 Iowa 415,39 N.W. 676 |
| Parties | PRIMMER v. PRIMMER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Benton county; L. G. KINNE, Judge.
Plaintiff, Lola E. Primmer, is the widow, and defendant, Sarah Primmer, the mother, of William H. Primmer, who died on the 6th of April, 1887. After his death an instrument purporting to be his last will and testament was filed with the clerk of the district court of the county. He left no surviving children, and by the will all of his property was devised to the widow. Defendant resisted the admission of the instrument to probate, on the ground (1) that the testator, when he signed it, was incompetent, owing to physical and mental weakness, to execute a will; and (2) that the execution of the instrument was procured through the fraud and undue influence of the wife and her relatives. The issue was tried to a jury, who found that the instrument was not the will of said William H. Primmer, and the court entered judgment on the verdict, refusing to admit the instrument to probate. Plaintiff appealed.J. C. Traer and G. W. Burnham, for appellant.
J. D. Nichols and G. M. Gilchrist, for appellee.
REED, J., ( after stating the facts as above.)
William H. Primmer was about 22 years old at the time of his death. He and plaintiff were married on the 11th of January, 1887. He was a widower, and had been in failing health for more than a year. The disease of which he died was consumption of the lungs. He had been advised by a physician to go to a warmer climate, and on the day after the marriage he started to the state of Kansas, being accompanied by his mother. He was not benefited by the change of climate, but, on the contrary, his disease grew worse, and on the 9th of March they returned to the family home in Benton county. At that time he was weak, and much emaciated. He remained there about one week, when he was taken to the home of his wife's father, where he remained until the day on which he died; when, at his own request, he was again removed to his mother's home, but died in a few hours after he arrived there. It was during the time that he was at the house of his father-in-law that the will was executed. The district court instructed the jury, in effect, that the instrument would not be defeated on the ground of the incapacity of the testator, unless it was shown that, at the time of its execution, he was incapable of weighing and comprehending the effect of the disposition he was making of his property, and of exercising reason and judgment with reference to the act. Also, that before they could find for the contestant on the other ground alleged, they must find that he was under an influence which amounted to coercion or restraint, and, in effect, destroyed his free agency; and that the instrument was not the expression of his own desire or will, but that of the persons by whom he was influenced. No exceptions were taken to the charge; but it was contended by counsel that, under the instructions, the finding should have been the other way, and that it finds no support in the evidence. It may be that if the cause was for trial here anew, and we were required to determine the question as to the sufficiency of the evidence, we would reach a conclusion contrary to the finding of the jury. On the question of the want of capacity of the testator the evidence appears to us to be weak; but on that question, even, it cannot be said that there was no evidence which tended to establish the allegation that he was not capable of disposing of his property. The testimony of the scrivener who wrote the will tended strongly to prove that he comprehended the nature of the act he was doing, and its consequences, and that he was capable of exercising judgment and reason with reference to it. But, on the other hand, one of the subscribing witnesses to the will testified that he was very weak, both in body and mind, and that he was apparently in a condition of stupor, from which it was difficult to arouse him; and other witnesses, who saw him shortly before and after, testified to substantially the same state of facts. There was a conflict in the evidence, then, upon that question, and different minds might fairly arrive at different conclusions with reference to it. And the same is true as to the other allegation. There was no direct evidence that either the proponent or any of her relatives ever urged or solicited the testator to execute the will, or make that particular disposition of his property. But a course of conduct on her part, and on the part of her parents, was proven; the fair inference from which is that the only object they had in view when the marriage was consummated was to...
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