Spiers v. Hendershott

• Decision Date: 10 May 1909
• Citation: 120 N.W. 1058,142 Iowa 446
• Parties: LYDIA SPIERS, Proponent, Appellee, v. FRANK L. HENDERSHOTT ET AL., Contestants, Appellants
• Court: Iowa Supreme Court

120 N.W. 1058

142 Iowa 446

LYDIA SPIERS, Proponent, Appellee, v. FRANK L. HENDERSHOTT ET AL., Contestants, Appellants

Supreme Court of Iowa, Des Moines

May 10, 1909

Appeal from Cedar District Court.--HON. F. O. ELLISON, Judge.

THIS is a proceeding in probate involving the validity of the will of Hannah Hendershott. The proponent, Lydia Spiers, is the principal beneficiary thereof. The contestants are collateral heirs of the deceased. There was a verdict sustaining the validity of the will, and the same was thereupon admitted to probate by proper order of the court. The contestants appeal.

Affirmed.

Henry Negus, Baker, Ball & Ball, R. J. Smith and C. H. Workman, for appellants.

J. H Preston, Charles Mather and I. T. Siddall, for appellee.

OPINION

EVANS, C. J.

Hannah Hendershott died in April, 1904. She had never been married and she left surviving her collateral heirs only. On January 22, 1898, when seventy-one years of age, she executed the will involved in this controversy. On that date her sister, Mrs. Dunloff, was living in the State of Ohio. This sister had been a helpless invalid for many years, and had been cared for in the home of her daughter, Lydia Spiers, the proponent herein. The testatrix devised her entire estate, consisting of about $ 7,000, to the use of her invalid sister and the daughter. On February 23, 1898, the deceased executed another will, and entered into a contract with one Calvin Gruwell whereby she agreed in substance to devise her entire estate to him in consideration of care and support during the remainder of her life. On October 13, 1898, she executed a revocation of all wills theretofore made. In November, 1898, a guardian was appointed for her by the district court of Cedar County, and he instituted litigation on behalf of his ward to set aside the contract with Gruwell. After the death of the testatrix, the will of February 23, 1898, was offered for probate, but its probate was successfully contested. Thereupon the proponent presented for probate the will now under consideration. The contestants resisted the probate on the alleged ground of undue influence and mental unsoundness, and that the will was duly revoked by the instrument of October, 1898. The proponent attacked the instrument of revocation on the ground that it was obtained by undue influence, and, by a later amendment, on the ground of mental unsoundness. The verdict of the jury sustained the validity of the will, and the court entered judgment accordingly.

The testimony on behalf of the contestants tended to show that the testatrix began to fail bodily and mentally some time prior to January, 1898; that her disease was senile dementia; that it was progressive, and that she constantly grew worse up to the time of her death. The testimony on behalf of proponents tended to show that prior to January, 1898, she had lost some of her former vigor, bodily and mental, but that she was fully competent on January 22, 1898, to make a will, and that she did make it in accordance with a previous purpose of long standing. It tends also to show that after this date, and especially in the summer of 1898, she failed mentally to a marked degree, and that in October of that year she was mentally unsound. We will consider the errors specified by the appellants in their order in the presentation of argument, as near as may be.

I. The first three errors assigned relate to the opinion of nonexpert witnesses, and we will consider them together. Mrs. Vincent testified for the contestants, and testified to a certain conversation she had with the testatrix wherein the testatrix said that her chickens had been stolen. She also testified that she noticed a difference in her conversation and actions, and that her housekeeping was not as careful as it used to be. Contestant's counsel put to her the following question, which was ruled out by the court: "Judging from what you say, and from what you saw there, and what you stated of Hannah's action and conversation, what would you say as to whether she was of sound or unsound mind?" The witness Cogshall, a bank cashier, was permitted to testify to certain conversations with the testatrix wherein she expressed a belief that some of her certificates of deposit had been stolen, and that the witness noticed a difference in her actions. He was permitted to testify without objection to the effect that he thought she was of unsound mind on February 23, 1898. Thereupon contestants' counsel put to him the following question: "What do you say as to whether she was of sound or unsound mind during all the time you have testified about in regard to certificates and other matters in the bank?" Also the further question: "From what date would you say she was of unsound mind, in your judgment?" These questions were ruled out as incompetent. The rule is that nonexpert opinion of mental unsoundness must be based strictly upon facts and circumstances, which are first detailed by the witness. In other words, the jury must know the very facts and circumstances upon which the opinion is based. While some latitude of discretion may be permitted to the trial court as to the form of the question, yet if the trial court refuses such latitude, it furnishes no legal ground of complaint. The question propounded to Mrs. Vincent required her to base her opinion not only upon the facts testified to by her, but also upon what she "saw." The question, therefore, was not in strict compliance with the rule.

Some latitude, also, must be permitted to the trial court to determine whether the facts testified to by the witness are sufficient to base an opinion of mental unsoundness thereon. The facts testified to by Mrs. Vincent were very meager for that purpose, and the question was so close that we think it was clearly within the discretion of the trial court to permit or refuse an opinion of mental unsoundness to be based thereon. The questions propounded to the witness Cogshall lost sight entirely of the nonexpert character of the witness, and they were put in the same form as though the witness had been an expert. There was no error, therefore, in the ruling of the court. In re Will of Norman, 72 Iowa 84, 33 N.W. 374; Severin v. Zack, 55 Iowa 28, 7 N.W. 404.

II. The proponent was permitted, over objection, to introduce in evidence a photograph of the deceased which was shown to have been taken shortly after the will in question was made. It is argued that this was improper and prejudicial. Some of the witnesses on behalf of contestants had undertaken to describe the appearance of the testatrix, and that she was "thin and poor." If her physical appearance was a proper subject for consideration, a photograph might naturally be of some aid. Appellants bring to our attention some authorities which look with much disfavor upon photographs as instruments of evidence. Such has not heretofore been the attitude of this court, and we think the authorities in question greatly exaggerate the danger of the use of photographs, and the reasons urged for their rejection do not appeal to us as sound. It is argued that the jury should not be permitted to determine the mental condition of the testatrix from the appearance of her photograph, and this is clearly true. The offer of it did not purport to be for such purpose. Appellants could have asked for an instruction on that feature if they had so desired. It was only one item of evidence bearing upon the physical appearance, and the degree of emaciation. It may be conceded in this case that a photograph had very little function to perform. We are unable, ourselves, to see wherein it could subserve much use to the proponent, and it is clear to us that it could work no prejudice to the contestants. Its admission or rejection was within the fair discretion of the trial court, and appellants have no legal ground of complaint at this point.

III. The contestants offered in evidence a transcript of the testimony of witnesses Michner and McClelland given on the trial of the contest of the will of February 23d. It is urged that, inasmuch as the will of the same testatrix was involved in that case, it should be deemed the same proceeding as the present case, and that the transcript of such evidence was therefore admissible. The abstract shows that an objection was sustained to this offer, but it does not disclose to us what the objection was. Assuming a proper objection, it was properly sustained. Appellants rely upon section 245a, Code Supp. 1907. This section renders such transcript admissible "on any retrial of the case or proceeding in which the same were taken." Such transcript can be used only in the same case, and upon a "retrial." Walker v. Walker, 117 Iowa 609, 91 N.W. 908; Wiltsey v. Wiltsey, 122 Iowa 423, 98 N.W. 294. The present contest of the will of January 22d is not a retrial of the contest of the will of February 23d. That contest went to final judgment. No retrial thereon was permitted. The invalidity of the will of February 23d was determined therein. That question is not involved in this trial. There was no error in this ruling.

IV. Errors 6, 7 and 8 are argued together. Proponent put the following question to William Mather, one of the subscribing witnesses: "My question was, do you consider her of sound or unsound mind? A. I considered her to be of sound and disposing mind at that time." Contestants duly objected to both question and answer. Three grounds of objection are urged here. It is urged that the question was in the present tense. This objection is met by the fact that the answer was in the past tense.

It is further urged that no time was fixed. The question indicates a reference to a previous question which is not set forth in the abstract. We think the answer fairly...