Ross v. Ross

• Decision Date: 29 October 1908
• Citation: 117 N.W. 1105,140 Iowa 51
• Parties: ROSS ET AL. v. ROSS ET AL.
• Court: Iowa Supreme Court

140 Iowa 51

117 N.W. 1105

ROSS ET AL.

v.ROSS ET AL.

Supreme Court of Iowa.

Oct. 29, 1908.

Appeal from District Court, Plymouth County; Wm. Hutchinson, Judge.

This is a contest over the will of Duncan Ross, deceased. It is claimed that testator was unsound of mind when he made the will, and that the same was the result of fraud and undue influence exercised by Boyson and Robert Ross and other persons unknown. Defendants are beneficiaries under the will, and they were also named as executors, and as such they offered the will for probate. Under the issues joined the case was submitted to a jury, resulting in a verdict and judgment for proponents and an order admitting the will to probate. Contestants appeal. Affirmed.McDuffie & Keenan and F. W. Sargent, for appellants.

Shull, Farnsworth & Sammis and E. C. Ericson, for appellees.

DEEMER, J.

Duncan Ross died in Plymouth county, Iowa, April 21, 1906, having made what purported to be his last will and testament on the 6th day of January, 1905. He was something like 95 years of age when he died, and left surviving five sons, James, Boyson, Robert, Walter W., and John M. Ross, and two daughters, Margaret Massey and Susan Hardy. Jessie Ross, another daughter, who married one Smith, died many years before testator's death, leaving a large family of children. Dan Ross, another son, died unmarried in the year 1871, and Duncan Ross, Jr., another son, died before the testator, leaving nine children surviving. By the terms of the will deceased devised to his sons Boyson and Robert property valued at $57,000, and some other property, the value of which is not shown. To his son Walter he devised 160 acres of land worth something like $9,600; to his son John M. Ross and his daughter Susan Hardy he devised property worth $9,900, and to the nine children of his son Duncan, Jr., he devised land worth about $4,000. To his sons Boyson and Robert he bequeathed personal property amounting to $14,000 to each; to John M. Ross and Susan Hardy each $6,000. To James Ross and the nine children of Duncan, Jr., he bequeathed each the sum of $10. To the children of his deceased daughter, Jessie Smith, and to Margaret Massey he bequeathed the sum of $1. The residue of his estate, both real and personal, he devised and bequeathed in equal portions to his children Boyson, Robert, and John M. Ross and Susan Hardy. The value of deceased's entire estate was approximately $120,000. Robert and Boyson Ross were named as executors, and as such filed the will for probate. Contestants named in the caption filed objections to the probate of the will, the material parts of which read as follows: “First, said pretended will was not executed and published by said Duncan Ross; second, that at the date of the pretended execution of said will the said Duncan Ross was of unsound mind, and mentally and physically incapacitated to make a valid will; third, that said pretended will was procured and executed through fraud, duress, and undue influence, exercised upon said decedent by the defendants Boyson Ross and Robert Ross, and other persons whose names are at the present time unknown to plaintiffs, and so contestants aver that said paper is not the valid will of said decedent, Duncan Ross, and should not be admitted to probate.” Two trials were had of the issues so tendered, the first resulting in a disagreement of the jury, and the second in a verdict for proponents, and the will was duly admitted to probate. For some years prior to his demise Duncan Ross had suffered from a cancer of the heel, which finally resulted in his death. And it is claimed that at the time of the making of the will testator was afflicted with senile dementia, and was mentally incapacitated from making a valid will. It is also contended that the will was the result of undue influence exercised by Boyson and Robert Ross and others, and that the same was obtained through fraud practiced upon him. The appeal challenges certain rulings of the trial court on the admission and rejection of testimony, certain of the instructions given to the jury, the ruling on the motion for a new trial, and also the sufficiency of the testimony to support the verdict. To such of these matters as are deemed important we shall now give attention.

E. C. Ericson, one of the proponents' attorneys, took the witness stand on behalf of his clients, and over contestants' objections was permitted to testify regarding the writing of a will for Duncan Ross in the year 1903, and the circumstances connected with the execution of the will. In this there was no error. The fact that he was then, or had theretofore been, of counsel for proponents was a matter to be considered by the jury; but such fact did not render the witness incompetent. Alger v. Merritt, 16 Iowa, 121.

Walter Ross, one of the contestants, was a witness on his own behalf and on cross-examination by proponents' counsel he was asked what the agreement was between himself and the deceased regarding the rent he was to pay for what was known as the “Wamsley Farm,” to which the witness answered: “Well, I might say I went to him and told him if he would rent it to me for three or five years, at the same terms I had it before, for five hundred and fifty, that I would break it up and get it into shape to farm. ‘Why,’ he says, ‘I will have to have more than that,’ but he says, ‘You stay there, and do the right thing with me, and see that I get my share out of these other farms,’ he said, ‘and I will do the right thing with you while you stay on this farm, and when I am done with it, it will be yours.’ And so when I got ready to--” Here the witness was interrupted, and on motion of defendants' counsel the answer, so far as it related to what the father told him, was stricken out, because incompetent under the statute, and not responsive to the question. This ruling was clearly within the discretion of the trial court, and was not prejudicially erroneous. If a witness on cross-examination attempts to inject matters into the case through answers which are not responsive to an interrogatory, the matter should be stricken on motion; and, if the trial court strikes such matter out, the other side has no right to complain, especially where, as here, the subject-matter of the testimony cannot be elicited from the witness because of some statutory inhibition. This witness, being interested and a party to the case, could not give any testimony as to any personal communication or transaction with his father, now deceased, for the action is against the executors under the will. See Code, § 4604, and annotations thereunder. After the cross-examination had closed contestant attempted to bring out the same matter on re-examination, but was prevented from so doing by the trial court's ruling sustaining objections to the questions propounded. In view of the ruling made on the cross-examination of the witness, it is manifest that there was no error here. The matter inquired about was not proper re-examination, and contestants could not offer such testimony in the first instance by reason of the provisions of the statute referred to. Contestants also asked their witness on re-examination as to whether his father talked intelligently and understandingly about his business matters in his dealings with him, and also as to the various subjects upon which his father talked, the manner and method in which he carried on his conversations, etc. Objections to these questions are not proper re-examination, and as incompetent were sustained. In this there was no error of which contestants may properly complain. The trial court has a large discretion in rulings on objections to questions as being not re-examination. The testimony was not offered in chief, and if it had been, it would have been objectionable, for reasons already stated. There was no prejudicial error in rulings on the admission and rejection of testimony.

2. The trial court gave these as its fourth, fifth, and sixth instructions:

“Par. 4. The statute of this state provides that any person of full age and sound mind may dispose by will of all his property except what is sufficient to pay his debts, or what is allowed as a homestead, or otherwise given by law as privileged property to his wife and family. That the will must be witnessed by two competent witnesses, signed by the testator, or by some person in his presence and by his express direction, and must be in writing. You are instructed therefore that the burden of proof in the first place rests upon the proponents, that is the parties seeking to have the will established, to show by the evidence that at the time of the execution of the will in question the testator, Duncan Ross, was of sound mind, that he signed said instrument as, and for, his last will and testament, and that such will was witnessed by two competent witnesses; and it is primarily sufficient if the statute is shown to have been substantially complied with in this respect.

Par. 5. If the proponents have therefore satisfied you that the instrument in evidence, marked ‘Exhibit A,’ is the last will and testament of Duncan Ross, and that he executed the same, and that at the time of the execution thereof he was of sound mind, and that he signed the instrument as and for his last will and testament, and that he signed the same in the presence of two or more competent witnesses, and that the signing and execution thereof was witnessed by two or more competent witnesses, or that it was signed by some person in the presence of the testator and by his express direction, and that the persons so witnessing the signing of the will by the testator signed the same as witnesses, in the presence of the testator and in the presence of each other, then you should find the will to be the last will and testament of the testator, and that the same should be admitted to probate in this court, and say so by your verdict.

Par. 6. The contestants claim that at...