Smith's Will, In re

• Decision Date: 17 November 1953
• Docket Number: No. 48381,48381
• Parties: In re SMITH'S WILL. DAVIS et al. v. SMITH et al.
• Court: Iowa Supreme Court

Page 866

60 N.W.2d 866

245 Iowa 38

In re SMITH'S WILL DAVIS et al. v. SMITH et al.

No. 48381.

Supreme Court of Iowa.

Nov. 17, 1953.

Eugene R. Melson, Jefferson, and Doran, Doran, Doran & Erbe, Boone, for appellants.

Harris, Hanson & Harris, Jefferson, for appellees.

THOMPSON, Justice.

Della A. Smith died on September 4, 1952, leaving a purported last will and testament executed on August 21, 1952. The will devised her entire estate, after payment of debts, to her husband, Albert D. Smith. Eleven nieces and nephews, who would have been entitled to inherit in the event of intestacy, filed objections to admission of the instrument to probate. Trial was had to a jury and a verdict returned upholding the validity of the will. From judgment on the verdict the contestants appeal.

Two errors are assigned: 1. The trial court erred in giving its instruction No. 11, and in refusing to give contestants' requested instruction No. 1; and 2, the court erred in excluding the offered testimony of contestants' witness Gladys Smith.

I. Contestants' requested instruction No. 1 is set out herewith:

'Mental weakness due to disease does not deprive one of his testamentary capacity unless and until it progresses sufficiently that the person making the will ceases to comprehend the nature and effect of the act of testamentary disposition.'

We assume it gives contestants' contention as to the correct rule of law applicable at this point. The court did not give the requested instruction, at least verbatim, but did give its instruction No. 11, which we quote:

'Mental weakness due to disease does not deprive one of testamentary capacity unless, and until, it becomes so complete that the person making the will ceases to comprehend the nature and effect of the act of testamentary disposition. (Emphasis supplied.)'

If there is any substantial difference in the two instructions it is not readily apparent. It seems to be contestants' thought that there is a material distinction between the phrases 'it progresses sufficiently' in their requested instruction and 'it becomes so complete' as given by the court. They argue the point as though the court had said 'becomes complete,' omitting the word 'so.' It is true there are no degrees of completeness, as there are none of perfection. But the objection is clearly hypercritical and lacking in merit. We are not concerned with the niceties of the English language, but only with whether the jury properly understood the terminology used by the court. What the court told them, in language which could not have been misunderstood, was that mental weakness does not deprive one of testamentary capacity unless and until it becomes so nearly complete that the person making the will ceases to understand the nature and effect of his act. The court did not tell the jury the disease inducing mental weakness must be complete; only that it must be so complete that the nature and effect of the instrument was not comprehended. Any person of ordinary intelligence could not understand otherwise. To hold with contestants would be a species of legalistic hair-splitting not justified by the language used.

II. Contestants' second assignment of error requires more attention. One of the principal witnesses for the proponent was Evelyn Moran who acted as a nurse for the decedent from the onset of her illness, on August 17, 1952, until her death on the following September 4th. She is apparently a niece of decedent's husband, the sole beneficiary under the will. Mrs. Smith suffered a hemorrhage of the brain resulting in paralysis of the left side of her face and body on the first date. Since she executed the will in question on August 21, four days later, her condition at that time was the material and vital point in the case. Miss Moran testified to a considerable improvement in her condition on the 19th and 20th, to certain conversations she had with her patient, including some statements made by Mrs. Smith, and to her good appetite until about August 27th.

On motion of the contestants the court made an order at the beginning of the trial excluding all witnesses from the courtroom. At times during the trial the court admonished the attorneys and witnesses about the rule. After Miss Moran had testified and the proponents had rested contestants offered, as a rebuttal witness, one Gladys Smith (not related to the decedent or her husband), a near-by neighbor. She had been in the courtroom during the trial. When she was offered as a witness objection was made by counsel for proponents on the ground she had violated the exclusionary rule. Contestant's counsel then said:

'This witness, Mrs. Gladys Smith, was in the courtroom today, but was not in the courtroom yesterday. I did not know that she would be a witness until I talked with her last evening.'

At this same point, and before the court had ruled upon proponents' objection, contestants' counsel made an offer of proof stating the witness was called in rebuttal 'for the sole purpose of impeachment of the testimony offered on behalf of proponents through their witness, Miss Evelyn Moran * * *.' Counsel then continued with the offer, saying it was his intent to show the witness Moran had made statements as to Mrs. Smith's condition, particularly concerning her ability to talk and her appetite which were contradictory to her testimony on the stand. The court then called attention to the rule made at contestants' request, that he had admonished counsel for the respective parties it would be their responsibility to make sure witnesses were excluded, he had repeated the admonition from time to time, and he saw no valid excuse why the rule should be waived. In effect, he announced the proposed witness would not be permitted to testify.

a. The question raised by the assigned error is two-fold: Did the trial court have any discretion in permitting or refusing the offered testimony; and if it had such discretion, did it abuse it? A collateral issue arises as to whether the error, if one was committed, was prejudicial under the record in this case; but this we shall discuss under subdivision b following.

On the question of the right of trial courts, within a proper discretion, to disqualify a witness who has disobeyed an order of exclusion, Wigmore on Evidence, Third Ed., Vol. VI, 366, 367-70, section 1842, says:

'In the United States, the great majority of Courts hold in general that the Court may in discretion disqualify the witness (italics quoted); some of these Courts, however, making the proviso that the party must have connived. The other Courts seem to forbid in general terms the disqualification of the witness; though in some of them it can hardly be doubted that a proviso as to the party's connivance would be enforced.

'On the whole, then, the Courts occupy a common ground where there has been fault in the party; at one extreme stand a few Courts denying disqualification even in that case; at the other extreme stand probably the majority of Courts, permitting disqualification even without the party's fault.'

The purpose of the rule is of course to lessen the danger of perjury, or at least of a suggestion to following witnesses of what their testimony should be to correspond with that previously given; to put each witness on his own knowledge of the facts to which he testifies rather than to have his memory refreshed, even guided, and his testimony colored by what has gone before. The minority of courts which have declined to enforce the rule say it is too harsh; a party should not be deprived of what may be essential evidence because a witness has violated an exclusionary rule. Dean Wigmore does not agree with this theory. He says, in effect, a party who has connived is justly deprived of testimony, since he has invited the disqualification of his witness; it is difficult to prove connivance; if the witness has evaded the rule he is an unsafe and untrustworthy witness; of two innocent parties, assuming there is no connivance, he should suffer whose witness has been in fault, since it is each party's duty, at whatever cost, to see his witnesses obey the rule. Wigmore on Evidence, Third Ed., Vol. VI, 366, 367, section 1842. He also points out that no one contends the disqualification should be an absolute requirement, but only a measure properly within the just discretion of the trial court. The question is also discussed in 53 Am.Jur. 48, 49, section 33, and 64 C.J. 121, 122, section 134.

Wigmore classes Iowa with the minority jurisdictions which hold the witness may not be disqualified, and there is no discretion resting in the trial court so to do. Before turning to a discussion and analysis of the Iowa authorities, we call attention to the record above set out which shows the offered witness here did remain in the courtroom one day, or a part thereof at least, after counsel for contestants knew she would be a witness. The word 'connivance' seems an unduly harsh one to apply here; it denotes some sort of improper collusion, and we have no thought counsel had any idea of violating the exclusionary rule by permitting her to remain. Yet it cannot be said she remained without his knowledge, and he was charged with the responsibility of keeping his witnesses out of the courtroom. Very likely he did not know this particular witness would be called until the trial was well along. She was to be a rebuttal witness. But the trial court had all these matters in mind, and he exercised his discretion against receiving her testimony.

The first Iowa case on the subject of exclusion is Grimes v. Martin, 10 Iowa 347, 349. One Snoddy, who had been in the courtroom while defendant testified, was called to contradict him, and over objection was permitted to testify. This court said:

'If the witness disregarded the order of the court in the premises, he was guilty of a contempt for which he might be punished, but the act would not render him incompetent to testify....