Sevening v. Smith

Citation133 N.W. 1081,153 Iowa 639
PartiesSEVENING ET AL. v. SMITH ET AL.
Decision Date12 January 1912
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Benton County; J. M. Parker, Judge.

This is a contest over the will of George Smith, deceased. Plaintiffs, who are contestants, are the daughters and grandchildren of the deceased. Defendant George Henry Smith is a grandson and one of the principal beneficiaries under the will, and the other defendants are the executors named in the will. The defendant George Henry Smith is a brother of the contesting grandchildren. The grounds for the contest are the mental unsoundness and incapacity of the testator. In one of the pleadings filed it is charged that he was afflicted with senile dementia at the time the will was made, and in another general mental and physical incapacity is alleged. A jury was called, and after the introduction of the testimony the trial court, on motion of the proponents, directed a verdict in their favor and ordered that the will be admitted to probate. The contestants appeal. Affirmed.Tom H. Milner, for appellants.

Kirkland & White, for appellees.

DEEMER, J.

Testator died June 20, 1909, at the age of 81 years. For many years prior thereto he had been afflicted with chronic bronchitis and organic heart trouble, but had been able to be about and to attend to his ordinary affairs down to within a few weeks of the time of his death. The will in controversy was executed March 5, 1909. It was drawn at testator's direction by one John Smith, the cashier of a bank in the town of Norway, duly signed by the testator, and properly witnessed. By the terms of this instrument he gave his wife all the household goods, and bequeathed to his grandson, George Henry Smith, all his real estate wherever situated, upon condition that he, the said grandson, pay to his wife the sum of $500 annually during life; pay to Lena Sevening, one of his daughters, the sum of $500 with interest; and to Elizabeth Boddecker, another daughter, the sum of $1,500. Provision was made that the widow should have the use and free occupancy of the house, yards, and orchards on the farm where testator then resided, or upon which he might reside at the time of his death. The remaining personal property was bequeathed to the said grandson and to the two daughters, share and share alike. No direct devise, legacy, or bequest was made to any of the other heirs, and none of the other grandchildren, of which there were four aside from George Henry, were in any way remembered. Another and former will, which was revoked at the time of the execution of the one in question, devised all of testator's real estate and one-third of his personalty to a son, Henry Smith. This son died early in February, 1909, and by reason of that fact the one now contested was executed and the grandson substituted as a devisee or legatee in place of the son. The first will was used as a guide when the second one was drafted. It was drawn at the request of testator, who stated to the scrivener what he wished to have incorporated therein. It is contended that testator's estate amounted to something like $35,000. But it is also shown that the daughter Mrs. Sevening, and her husband, had property worth something like $37,000; that the daughter Mrs. Boddecker had property worth $20,000; that the deceased son had 240 acres of land and $5,000, which went to his children upon his demise; and that the wife of testator, who survived him, took one-third of his estate, and upon her death the property passed to her heirs, who are the active parties to this litigation. Moreover, it is shown that George Henry Smith was the favorite grandson of the deceased, and that none of the direct heirs of the testator were left in want. Although a little out of order, we may say that there is nothing in the disposition of the property as made by the will which indicates a disordered mind. In this connection we may well quote from some of the cases.

[1] Thus in Trotter v. Trotter, 117 Iowa, 418, 90 N. W. 750, we said: “While the fact that a will is unreasonable or unjust may be considered in connection with evidence bearing on the condition of testator's mind, it is not a ground for refusing probate. Webber v. Sullivan, 58 Iowa, 260 ;Muir v. Miller, 72 Iowa, 585 ;Denning v. Butcher, 91 Iowa, 425-438 ;Manatt v. Scott, 106 Iowa, 203-216 [76 N. W. 717, 68 Am. St. Rep. 293]. Whether a will is just or unjust is not in and of itself a question for the jury, for a person has the legal right to make an unjust disposition of his property if he does so intelligently. Courts do not make wills for persons; when upon investigation they determine that an instrument is a will, it must be recognized as such however unfair its provisions may be.” And in Johnson v. Johnson, 134 Iowa, 34, 111 N. W. 430, this language was used: “That its provisions were unequal when considered with reference to those having claims on her bounty may be conceded. When equality is intended, there is no occasion for the execution of a will. The law wisely secures equality of distribution when a person dies intestate. Testamentary disposition of property is seldom entirely satisfactory to all having claims to consideration. The infirmities of human nature are likely to be evidenced in the last testament, voicing the dictates of affections and enmity, the partialities and dislikes of the testator while living. But to all these he has a right, and, if he chose, might be unjust in the disposition of his property.” So that there is nothing in the terms of the will itself which in any manner indicates mental unsoundness.

[2] But it is strenuously argued that enough other testimony was adduced by contestants to take the case to a jury on that issue. The discussion of that subject may well be prefaced by this quotation from one of our recent cases, with reference to the law applicable to such an issue: In Perkins v. Perkins, 116 Iowa, 259, 90 N. W. 57, we said: “The right of a man to dispose of his property by will as he sees fit is one which the law is slow to deny. No mere weakening of the mental powers--no mere impairment of the faculties--will invalidate a will executed in due form, so long as he retains mind enough to know and apprehend in a general way the natural objects of his bounty, the nature and extent of his estate, and the distribution he wishes to make of it. It is not necessary that he should be competent to make contracts or to transact business generally. * * * Old age and failure of memory do not of themselves necessarily take away a testator's capacity to make a will. * * * His mind may have become debilitated by age or disease, the memory enfeebled, the understanding weakened; he may even want the capacity to transact many of the business affairs of life; but, if he has mind enough to recollect the property he means to dispose of, the objects of his bounty, and the manner in which he wishes to distribute it among them, he has testamentary capacity. * * * The exclusion of some or all of his legal heirs from the benefits of a will is not sufficient evidence of incapacity.” Again in the same case it was said: “The similarity of the provisions of the instrument herein sought to be probated with the one executed about a year previous to the death of his son is evidence that the testator had a deliberate and intelligent purpose in making the bequest to his son, and after the death of his son to his grandson, the principal beneficiary under said instrument last executed.”

[3][4][5] The burden was upon contestants to show that testator was mentally unsound and incapable of making a will. But as the verdict was directed we must give to the testimony produced by them its strongest probative force. Yet if, when so considered, it appears that it would have been the duty of the trial court to have set aside a verdictfor contestants had one been rendered, then there was no error in directing a verdict after all the testimony was adduced. Meyer v. Houck, 85 Iowa, 319, 52 N. W. 235;Hurd v. Neilson, 100 Iowa, 555, 69 N. W. 867;Beckman v. Coal Co., 90 Iowa, 255, 57 N. W. 889.

[6] The testimony shows that while testator was affected with chronic bronchitis for some years before his death, and at one time became overheated, and as a result had dizzy spells from time to time, yet...

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2 cases
  • Estate of Kirby, In re
    • United States
    • Iowa Supreme Court
    • February 7, 1950
    ...decisions of this court: Perkins v. Perkins, 116 Iowa 253, 90 N.W. 55; Leonard v. Shane, supra (both by Weaver); Sevening v. Smith, 153 Iowa 639, 133 N.W. 1081; Gates v. Cole, 137 Iowa 613, 115 N.W. 236; Hanrahan v. O'Toole, 139 Iowa 229, 117 N.W. 675; Nowlen v. Nowlen, 122 Iowa 541, 98 N.W......
  • Sevening v. Smith
    • United States
    • Iowa Supreme Court
    • January 12, 1912

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