Smith's Will, In re, No. 48381

CourtUnited States State Supreme Court of Iowa
Writing for the CourtTHOMPSON
Citation245 Iowa 38,60 N.W.2d 866
Decision Date17 November 1953
Docket NumberNo. 48381
PartiesIn re SMITH'S WILL. DAVIS et al. v. SMITH et al.

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.

Page 867

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 [245 Iowa 40] 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

Page 868

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 [245 Iowa 41] 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 [245 Iowa 42] 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

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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...

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27 practice notes
  • Pierce's Estate, In re, No. 48326
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 1953
    ...the propriety of this holding. Objectors have not shown themselves entitled to relief regardless of whether their petition is so barred. [245 Iowa 38] Other contentions have been considered and found not to entitle objectors to Affirmed. All Justices concur. ...
  • Shover v. Iowa Lutheran Hospital, No. 50106
    • United States
    • United States State Supreme Court of Iowa
    • January 11, 1961
    ...ruling will be upheld even though the proper ground for exclusion was not urged in the objection to its admission. In re Will of Smith, 245 Iowa 38, 46-47, 60 N.W.2d 866, 871, and citations; 4 C.J.S. Appeal and Error § 291a, p. 894. See also Stover v. Central Broadcasting Co., 247 Iowa 1325......
  • State v. Stump, No. 50605
    • United States
    • United States State Supreme Court of Iowa
    • January 15, 1963
    ...and there was in fact a good and sufficient objection to the reception of the evidence, there is no reversible error. In re Will of Smith, 245 Iowa 38, 46, 60 N.W.2d 866, [254 Iowa 1189] and cases cited therein. In re Will of Crissick, 174 Iowa 397, 416, 156 N.W. 415, Page 215 422, often re......
  • Rowen v. Le Mars Mut. Ins. Co. of Iowa, No. 61360
    • United States
    • United States State Supreme Court of Iowa
    • July 11, 1979
    ...was patently unfair, and the trial court did not abuse its discretion in refusing to allow Fischer to testify. Cf. In re Will of Smith, 245 Iowa 38, 45-46, 60 N.W.2d 866, 870-71 (1953) (court has inherent power to exclude testimony for violation of a pretrial IV. Statute of Limitations. Def......
  • Request a trial to view additional results
27 cases
  • Pierce's Estate, In re, No. 48326
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 1953
    ...the propriety of this holding. Objectors have not shown themselves entitled to relief regardless of whether their petition is so barred. [245 Iowa 38] Other contentions have been considered and found not to entitle objectors to Affirmed. All Justices concur. ...
  • Shover v. Iowa Lutheran Hospital, No. 50106
    • United States
    • United States State Supreme Court of Iowa
    • January 11, 1961
    ...ruling will be upheld even though the proper ground for exclusion was not urged in the objection to its admission. In re Will of Smith, 245 Iowa 38, 46-47, 60 N.W.2d 866, 871, and citations; 4 C.J.S. Appeal and Error § 291a, p. 894. See also Stover v. Central Broadcasting Co., 247 Iowa 1325......
  • State v. Stump, No. 50605
    • United States
    • United States State Supreme Court of Iowa
    • January 15, 1963
    ...and there was in fact a good and sufficient objection to the reception of the evidence, there is no reversible error. In re Will of Smith, 245 Iowa 38, 46, 60 N.W.2d 866, [254 Iowa 1189] and cases cited therein. In re Will of Crissick, 174 Iowa 397, 416, 156 N.W. 415, Page 215 422, often re......
  • Rowen v. Le Mars Mut. Ins. Co. of Iowa, No. 61360
    • United States
    • United States State Supreme Court of Iowa
    • July 11, 1979
    ...was patently unfair, and the trial court did not abuse its discretion in refusing to allow Fischer to testify. Cf. In re Will of Smith, 245 Iowa 38, 45-46, 60 N.W.2d 866, 870-71 (1953) (court has inherent power to exclude testimony for violation of a pretrial IV. Statute of Limitations. Def......
  • Request a trial to view additional results

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