Speer v. Speer

• Decision Date: 17 November 1909
• Citation: 123 N.W. 176,146 Iowa 6
• Parties: WILLIAM C. SPEER, JOHN M. BLACK and SAMUEL J. BLACK, Appellants, v. MARY JANE SPEER
• Court: Iowa Supreme Court

123 N.W. 176

146 Iowa 6

WILLIAM C. SPEER, JOHN M. BLACK and SAMUEL J. BLACK, Appellants, v. MARY JANE SPEER

Supreme Court of Iowa

November 17, 1909

REHEARING DENIED TUESDAY, FEBRUARY 15, 1910.

Appeal from Jasper District Court.--HON. K. E. WILLCOCKSON, Judge.

ACTION at law to set aside the probate of a will. At the conclusion of plaintiffs' evidence the court sustained a motion to direct a verdict for defendant, and from a judgment against the plaintiffs for costs rendered on such verdict the plaintiffs appeal.

Affirmed.

Z. F Yost and O. P. Myers, for appellants.

E. J Salmon and Geo. C. Kipp, for appellee.

OPINION

MCCLAIN, J.

An instrument purporting to be the last will and testament of Alexander Speer was admitted to probate in the district court of Jasper County on February 17, 1902. It purported to have been executed on the 3d day of the same month, and it appeared that the testator died on the 6th. By this instrument the testator, who was without issue, left his property to defendant, his surviving widow. In August, 1906, within less than six months of the expiration of the statutory period for instituting action to set aside the probate of this instrument, the plaintiffs, William C. Speer, a brother of testator, and John M. and Samuel J. Black, his nephews, instituted this action to set aside said probate on the ground that the instrument purporting to be a will was admitted to probate without any contest, and that it was not the last will and testament of Alexander Speer, for the reason that it was procured by the fraud and undue influence of defendant, the sole beneficiary therein, and that said testator was of unsound mind at the time said instrument was executed, and on the further ground that said testator was unconscious and in such physical condition at the time said instrument purports to have been executed by him that he could not sign the same, and never did sign the same, so that it is not his will. We find no evidence in this record tending in the remotest way to show affirmatively any undue influence exercised upon testator in connection with the execution of his will, and we find no evidence of a diseased mind which would indicate that if the instrument was consciously and intentionally executed it was not entitled to probate. The sole question which plaintiffs attempted by their evidence to present was whether testator was so enfeebled in mind by physical disease that he was unable to exercise the discretion necessary to make a will. The complaints of appellants are: First, that there was enough evidence to go to the jury on the question whether testator was on the day of the execution of the will sufficiently conscious to enable him to execute it; and, second, that the court erred in rejecting evidence which, if admitted, would have required the submission of the case to the jury.

I. The disease of which testator died is described by the witnesses as broncho-pneumonia with pleurisy, with which testator had been seized about five days before the will was executed, and of which he died the second day after its execution. As testator's sickness was wholly physical, proof of his condition as to lethargy, suffering, or unconsciousness on days preceding or following the execution of the will is entitled to very little consideration; the sole question being whether at the time of its execution he was conscious and able to understand what he was doing. Fethergill v. Fethergill, 129 Iowa 93, 105 N.W. 377. Only two of the witnesses saw him on the day when the will was executed. Neither of these witnesses was present at the time of its execution, or attempted execution. They speak of his physical weakness, his failure to recognize them, and his apparent inability to converse as to his condition or his affairs. Without considering the evidence which was excluded by the court, we are unable to find anything in the record substantially tending to show that testator may not have been in such condition when the will was in fact executed that he could understand what he was doing and express his deliberate purpose as to the disposition of his property.

Mere mental weakness, not due to mental disease, but solely to physical infirmity, does not constitute mental unsoundness. Hanrahan v. O'Toole, 139 Iowa 229, 117 N.W. 675. On the other hand, it is well settled that there may be testamentary incapacity without actual insanity or unsoundness of mind. Manatt v. Scott, 106 Iowa 203, 76 N.W. 717; Garretson v. Hubbard, 110 Iowa 7. But mere weakness of mental power will not render a person incapable of executing a will. It is not necessary that he should be competent to make contracts or transact business. Old age and failure of memory do not of themselves necessarily take away a testator's capacity to dispose of property. Perkins v. Perkins, 116 Iowa 253, 90 N.W. 55. There is nothing in this case to bring it within the case of In re Wiltsey's Will, 135 Iowa 430, 109 N.W. 776, where it appeared that relatives in attendance upon testator at the time the will was executed took advantage of his lack of mental capacity due to sickness to practically dictate to him the disposition which he should make of his property. In Duggan v. McBreen, 78 Iowa 591, 43 N.W. 547, there was affirmative evidence to show that testator was in confusion as to the person and objects which he would reasonably have had in mind in an attempt to dispose of his property.

Here the disposition was not complicated, and there is nothing to indicate that the execution of the will was not simply the carrying out of a plan previously and definitely entertained, so that the only mental capacity necessary to be exercised was that of determining whether or not he should make a will in that form. We are satisfied that the evidence as admitted by the court did not present such a case as to justify the submission to the jury of the question whether testator at the time this instrument was executed was incapable of making a valid will. A verdict setting aside the probate of the will would, we think, have been without proper support. Fethergill v. Fethergill, 129 Iowa 93, 105 N.W. 377.

II. Turning now to the many assignments of error alleged to have been committed in sustaining objections to questions or striking out portions of answers calling for opinions of witnesses as to testator's physical condition on the day on which the will was executed, we need refer to but a few instances to illustrate the line of decision adopted by the trial judge. Statements of the witness Lyda Kenyon, as to testator's condition, such as that he "seemed to be suffering," "seemed to be in a stupor," and did not talk to her that day "because he was too sick," related to the day following that on which the will was executed, and, under the circumstances of the case, we think could not be considered as showing what his condition was on the preceding day. He was suffering from a progressive illness, and he may well have been in a much worse condition than when he signed the will.

The testimony of witness Dibbel that, when he saw testator on the day on which the will was executed, it seemed to be hard work for him to breathe, added nothing to the statement already made that the manner of his breathing "seemed to be labored, heavy."

A portion of an answer of witness Thomson, in which he stated that, when he saw testator on the day on which the will was executed, he "could not indicate that he could understand what I said to him," was properly stricken out as a mere inference, and, if it had been allowed to stand, could not have added any weight to the other testimony of the witness on the same subject.

An objection to a question to the same witness as to whether the recognition of the testator at this time was the same as his recognition in good health was properly sustained, for the reason that the question was altogether too indefinite to lead to any answer of probative value. Many other alleged errors of the same kind have been investigated in the record, with the conclusion that none of them resulted in the exclusion of testimony which would have added anything to the weight of the testimony of the witness.

III. One James Martin, deceased when the case was tried, was an attesting witness to the will. Plaintiffs offered to show that said Martin, immediately after attesting the will, made declarations to the effect that testator had waited too long and that he (Martin) was sorry he had signed the will as a witness thereto, and that if he had it to do over again he would not do it, and that testator did not know what he was doing. The court refused to receive this evidence, and appellants assign this refusal as error. The offered evidence was clearly incompetent as hearsay, unless the fact that Martin was an attesting witness rendered it competent. The argument is that the validity of the will is presumed to stand, in the absence of other evidence upon the faith and credit given to the attesting statement of Martin that testator signed it, and that Martin's attestation therefore stands as affirmative evidence of a fact, and his declarations inconsistent with his attestation should be received to impeach its effect. We may concede that the mere formal difficulty of the want of a preliminary question to Martin as a witness calling upon him to say whether he made such a declaration in order to lay the foundation for the impeaching testimony ought not to stand in the way of the receipt of the impeaching evidence, if it is properly impeaching. There are analogies for dispensing with such formal step where it is impossible by reason of death or absence of one who would otherwise be a witness. See, for instance: Felder v. State, 23 Tex. Ct. App. 477 (5 S.W. 145, 59 Am. Rep. 777...