Severin v. Zack

• Decision Date: 08 December 1880
• Citation: 7 N.W. 404,55 Iowa 28
• Parties: SEVERIN v. ZACK ET AL
• Court: Iowa Supreme Court

7 N.W. 404

55 Iowa 28

SEVERIN v. ZACK ET AL

Supreme Court of Iowa, Des Moines

December 8, 1880

Appeal from Hardin Circuit Court.

THE plaintiff is proponent of the will of Frederick M. Zack deceased. The defendant contests the probate of the will upon the ground that the testator at the time of making the will was sick with consumption, and had thereby become imbecile, or nearly so, and was under undue influence exerted by the proponent and his wife. There was a trial by jury, and verdict was rendered for the contestants. Judgment having been rendered accordingly the proponent appeals.

REVERSED.

Porter & Moir and F. Gilman, for appellant.

Huff & Reed and W. V. Allen, for appellees.

OPINION

ADAMS, CH. J.

The testator at the time of his death was about fifty years of age, and was residing at Ackley. His family consisted of himself and wife, and an infant child. In June, 1878, he left his home in Ackley, and lived for a few weeks at Cedar Falls with Mrs. Severin, the wife of the proponent, and daughter of the testator by a former marriage. The testator was at that time sick with consumption, and not expected to recover. He went to Cedar Falls upon the urgent solicitation of Mr. and Mrs. Severin, and with the hope that he might be more comfortable or improved by their care. While at Cedar Falls he executed the will in question. It bears date the 23d day of July, 1878, and by it certain property is devised to Mrs. Severin. After its execution the testator returned to his home in Ackley, where he died with consumption on the 12th day of August, following.

The evidence shows that at the time the will was executed the testator had become greatly reduced in strength, and was able to sign the will only by being raised up in bed for that purpose. The evidence of imbecility, however, is by no means satisfactory. Upon the trial the contestants made some effort to prove insanity. The wife of the testator in her testimony says: "My husband was crazy very often." She then proceeds to detail circumstances, but her testimony in detail shows but little more in regard to the condition of the testator's mind than that he was subject to fits of ill-temper.

The proponent insists that there is no evidence whatever tending to impeach the will, and that the verdict cannot be sustained.

We do not feel called upon to pass upon this question, because in the view which we take of the case it must be remanded for another trial, and the evidence upon another trial may be different.

After Mrs. Zack and others had testified to facts tending, as was claimed, to show the testator's mental incapacity to make the will, the proponent was introduced as a witness, and a question was asked in these words; "Did you notice any actions about him different from what he was in ordinary health?" To this question the contestants objected, upon the ground that it was "incompetent under section 3639 of the Code, and subsequent provisions, for the witness is a party to the suit, relating to transactions between him and the deceased at or about the time of the making of the will in question." The court sustained the objection, and the proponent excepted. The witness was...