Shaw v. Duro
| Decision Date | 02 May 1944 |
| Docket Number | 46348. |
| Citation | 14 N.W.2d 241,234 Iowa 778 |
| Parties | SHAW v. DURO. |
| Court | Iowa Supreme Court |
Gillespie & Gillespie, of Des Moines, for appellant.
Paul W. Steward, of Des Moines, for appellee.
On May 16 1941, the will of John Heber Duro was admitted to probate in the District Court of Polk County, Iowa. Thereafter plaintiff, hereinafter for convenience designated as contestant, who is the daughter and only child of said John Heber Duro, brought this action to set aside such order of probate against Evelyn Irene Duro executrix, and against Evelyn Irene Duro personally. The grounds alleged were that the will was not duly executed lack of testamentary capacity and undue influence. To the petition answer was duly filed by defendant, herein named as proponent, and trial was had thereon. At the end of contestant's testimony the court overruled proponent's motion for directed verdict and at the end of all the evidence the court took from the jury the question of defective execution and lack of testamentary capacity. The trial resulted in a verdict for contestant, the jury finding that said will was procured by the undue influence of Evelyn Irene Duro, and judgment was entered thereon. From the overruling of proponent's motion for directed verdict, from the various rulings of the trial court and the judgment, proponent appeals.
John Heber Duro died in Florida on April 10, 1941, at the age of 59 years. He was born in England and in his early days was a coal miner. He came to America in 1901 and settled in Des Moines, where he had relatives, and engaged in the coal business. He married in Des Moines and had one child, a daughter, Louise Dorothea Duro, contestant herein, who was born in 1912. The mother, Ella Gaedke Duro, died in 1919, by will leaving all of her property, including the home, to the daughter. There was testimony that this property was estimated to be of the value of $35,000 or $40,000. John Heber Duro was appointed administrator with will annexed of his wife's estate. There were no inventory or reports filed in said estate and at the time of Duro's death the estate was still not closed and no settlement or accounting had been made. The father and daughter continued to live in the home, the property of Louise, on 44th Street, in Des Moines. The estimated value of the home at one time was $11,000, but was eventually sold by Louise after the death of her father for $7,500. This was the home of decedent until his death in 1941. The personal property of the mother was never turned over to the daughter, but remained in charge of her father during the time of her minority and thereafter. The daughter was educated in high school, Stephens College and Drake University. For a short time after her graduation from Drake University she worked in a department store as a clerk and later entered the office of her father where she worked for $60 per month for seven years and until after her marriage to John Robert Shaw in 1936. She and her husband removed to Atlantic, Iowa, in 1940. Susan, their daughter, was born in 1940. The proponent, Evelyn Irene Duro, sister of decedent, was born in England in 1900. After the death of her brother's wife she came to this country in 1920 and lived with her brother and niece at the 44th Street home. These are the principal persons concerned in this suit. The will in controversy was executed December 27, 1939, in Des Moines and was witnessed by William Sedgwick, Clara Sedgwick and Madeline Mary Keturokis. It gave everything to proponent, appointed her executor without bond with full power of disposition and made no mention of testator's daughter.
I. Proponent's first assignment of error is that the court erred in submitting to the jury the issue of undue influence. This is the principal question before us-whether or not there was sufficient competent evidence to authorize submission and to justify the court in its refusal to direct a verdict or take all the issues from the jury.
It is true, as argued by proponent, that more than a scintilla of evidence is necessary to make a jury question, and that mere opportunity, or a disposition to influence testator are not of themselves sufficient. Influence, to be undue, within the meaning of the law, must be such as to substitute the will of the person exerting the influence for the will of the person sought to be influenced. These rules have been many times announced by our decisions. See Arndt v. Lapel, 214 Iowa 594, 243 N.W. 605.
It may also be taken as established by our decisions that the burden of proof in cases of this nature is upon the contestant. But the determination whether or not there was such undue influence as would vitiate a will must depend upon the facts in each particular case. It is therefore necessary that we briefly review some of the facts developed by the testimony and presented for the consideration of the jury. It is impossible within the limits of an opinion to set out to any great extent the evidence in the lengthy trial in the district court. The abstract and amendment to abstract comprise more than 460 pages of evidence alone, not including exhibits. We shall endeavor only to summarize contestant's testimony. It is not necessary to review the testimony of proponent, which, of course, conflicts in many respects with that of contestant. The question before us is the sufficiency of contestant's evidence.
John H. Duro after settling in America became a naturalized citizen and during the early period of his residence in Polk County engaged in coal mining, afterwards acquiring interests in various mines. He had acquired some property up to the time of the depression beginning in 1929. It appears that about that time his business failed to prosper and he had losses, with little remaining property. His early life in England had created in him habits of industry, economy and saving. Although generous in some respects, he was inclined to place an extremely high value on money and property. About 1930, when the daughter Louise was grown, decedent contemplated another marriage. He kept company with a young woman by the name of Julia Anderson and became engaged to her in 1931. According to the testimony of Miss Anderson, now Mrs. Buth, the original date set for the marriage was 1931 but for various reasons, including financial reverses of Mr. Duro, and, as stated by him to Miss Anderson, on account of the opposition of his sister Irene, the wedding did not take place then or at any other time, although the engagement was not immediately terminated and they continued to go together and corresponded with each other when Duro was absent from the city. Duro and Miss Anderson took occasional hunting trips to her father's farm north of Ames. On one trip on January 28, 1933, he was indisposed and suffering, as he supposed, from indigestion. He was taken with excruciating pains and was compelled to take a room at a hotel in Ames and call a doctor. Under the doctor's orders Miss Anderson called Louise, who conveyed word to Irene. The family physician in Des Moines, Dr. Grimes, was also summoned and Miss Anderson's mother came to the hotel and remained until after Irene and Louise arrived. Irene immediately took charge and at her suggestion Miss Anderson returned to Des Moines. The evidence indicates that throughout the first period of this severe heart trouble with which Duro was afflicted during the remainder of his life, the proponent, Irene Duro, exerted her efforts in interposing obstacles to the association of her brother with Miss Anderson.
From the time of his seizure in Ames and until his death in 1941 decedent suffered from coronary occlusion and never regained his health. He was confined to his bed for a year, thereafter being compelled to avoid any exertion, overeating and excitement of all kinds and was required to take medicines regularly. He had a regular rest schedule and tired very easily. Too much exertion often sent him to bed for a period. He sometimes had great difficulty in breathing. While he continued to do work in his office, he was unable to spend full time there and had to be careful about his expenditure of energy in either physical or mental work. There were other complications and it appears from the testimony that the ailment from which he suffered would have been earlier fatal had it not been for his extreme care and caution. It is impracticable and would be useless to set out with any degree of fullness the testimony which was presented to the jury regarding his seriously weakened condition. It is sufficient to say that up to the time of his death his principal care was to maintain life by the avoidance of anything which might interfere with his dangerous cardiac condition. Throughout this period his sister Irene acted as his nurse and supervised his actions, his diet and his care in general. While he attended various meetings of the companies in which he was interested, there were times when he was compelled to leave before the meetings were over and he would take very little or no part in the conversation or discussion. There was testimony, as shown by the statement of Evelyn Irene Duro in an affidavit to the Travelers Insurance Co. of Hartford, that the period during which the insured was disabled from performing any and every kind of duty pertaining to his occupation was from January 29, 1933 at 10 A.M. to April 10, 1941 at 12 P.M. It appears from the testimony that the cars administered by Irene was voluntary and there were times when the subject of employment of a nurse was brought up, but Mr. Duro stated that he could not make changes because he was afraid of his life and he would not risk his life by doing things which gave him these spells which almost made him pass out. At one time he...
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