Stephens v. Jones (In re Jones' Estate)

• Decision Date: 12 March 1906
• Citation: 130 Iowa 177,106 N.W. 610
• Parties: IN RE JONES' ESTATE. STEPHENS v. JONES.
• Court: Iowa Supreme Court

130 Iowa 177

106 N.W. 610

IN RE JONES' ESTATE. STEPHENS

v.JONES.

Supreme Court of Iowa.

March 12, 1906.

Appeal from District Court, Iowa County; O. A. Byington, Judge.

This is a contest over the will of Martha Jones, deceased. Contestant claims that testatrix was of unsound mind when the will was executed, and that it was obtained from her through the undue influence of Mary Jones and her husband, David. Another and prior will of testatrix was also filed for probate, and to this objections were made by Mary J. Jones, who claimed that this will was executed when testatrix was unsound of mind, and that the same was brought about through the undue influence of Charles G. Jones. The case was tried to a jury which found against the contestant of the will first referred to, and he, Charles G. Jones, appeals. Reversed.Thomas Stapleton, Yoss & Wallace, and R. W. Pugh, for appellant.

J. M. Dower and C. Hedges, for appellee.

DEEMER, J.

It does not appear who filed either will for probate but the testimony and the record show that John F. Stephens was and is the proponent, or one of the proponents of the will, over which this controversy arises. From the statement already made it appears that testatrix executed two wills, one of date July 5, 1900, and the other August 30, 1900. In the first she made Charles G. Jones, whom she described as “her beloved friend and companion who had lived with her so long,” her sole devisee. In the second she devised her property to her daughter, Mrs. Mary A. Jones, upon condition that she pay to Charles G. Jones the sum of $200 and perform some other stipulations not necessary to be here mentioned. The two wills were filed for probate on the same day, to wit, December 10, 1903, testatrix having died during the early days of that month. The first will is in the case as a basis for contestant's standing in court, for without it, he has no interest, not being related in any way to the deceased. The case went to the jury on the issues tendered as to the validity of the second will in point of time; and we shall hereafter refer to the two wills as the first and the second. That both wills were executed in conformity to the statute is conceded, and the only issues as to the second will were as to the mental capacity of the testatrix, and as to whether or not it was procured through undue influence. The questions presented upon this appeal all relate to one or the other of these two issues.

Contestant pleaded and attempted to show that testatrix was afflicted with senile dementia at the time she made the second will; and that she was prompted to make it by the principal devisee therein, Mary Jones and her husband, David. Appellant's counsel assign 37 or more errors committed by the trial court, although in argument they contend for but 26. It is manifest that within the limits of an ordinary opinion it is impossible to treat of each of these; nor is it necessary, for many of the claimed errors are of the same general nature and may be treated together. We shall first take up rulings on evidence which seems to be important.

John W. Jones was the husband of Martha, the testatrix; and he died testate. Martha elected to take under the law, and it is the one-third of her husband's estate which she attempted to dispose of by will. A witness was permitted over contestant's objections that it was not the best evidence, to give the contents of John W.'s will. This was manifestly erroneous. He was also asked as to his understanding as to who was to take under that will. Surely no argument is necessary to demonstrate the incorrectness of this ruling. That it was prejudicial appears from the answer to the effect that it was his understanding that Martha was to have the property during her life, and then it was to go to Mary, and then to her children if any was left. It is easy to see how this testimony might have prejudiced the case.

A physician who attended testatrix during her sickness and at the time the will was executed, was a witness for proponent. He testified that he found her in the summer of 1900, pulseless and in a profuse cold sweat; that she had bowel and bladder trouble, and that, during the progress of the disease, she had heart trouble. He also testified that there was a gradual improvement in her condition until his visits finally ceased in October of that year. He also said that he visited her on the very day the will was signed. He further said that when he was called in June she had a high fever which subsided in three or four weeks, and that there was a gradual improvement in her condition. On cross-examination he testified that she had toxæmia from the start, and that she lay in a stupor more or less from the early part of her sickness. Further he stated that every organ of her body was more or less affected with toxæmia. He was then asked if the patient's mind was affected by this toxæmia. Objection to this question was sustained. We think it should have been answered. Testatrix's physical condition was not in issue, save as it bore upon her mental, and the doctor's testimony, if it amounted to anything, was to show her mental condition as affected by her physical on the day the will was executed. The effect of his testimony was that her physical condition had materially improved from what it was when she was first stricken, and that when the second will was executed, she was much better than she had been theretofore. On cross-examination it is proper to meet any inferences that may be drawn from the witnesses' testimony in chief. Moreover the witness being an expert, and having given a diagnosis of the case, and indicated his treatment it was proper to cross-examine him fully as to her condition both of mind and body in order to test his credibility, the efficacy of his treatment and the effect thereof as tending to cure or alleviate the suffering and diseased condition which he said he reduced. Bever v. Spangler, 93 Iowa, 608, 61 N. W. 1072. The same witness was asked if she was suffering from senile dementia while he was treating her. This question should also have been answered for reasons above stated.

David Jones, husband of Mary, was asked as to how much property he owned in July, 1900. Over proponent's objections he was not permitted to answer. Contestant then offered to show that he had more than $30,000 worth of property. The question should have been answered. Manatt v. Scott, 106 Iowa, 203, 76 N. W. 717, 68 Am. St. Rep. 293, and cases cited. Proponents were permitted to show over contestant's objection, declarations of John W. Jones, husband of testatrix, who died some time before the making of the wills in controversy, as to what he was going to do with his property, and for contestant Charles G. Jones. These declarations were not made in the presence of Martha Jones, and were therefore hearsay, incompetent, and immaterial to any legitimate inquiry in the case.

2. After the two wills had been filed, and on March 5, 1904, attorneys for contestant caused notice to be served upon Mary J. Jones, designated as proponent, of the suing out of a commission to take the deposition of one Abram Jones, a resident of Ohio. The commission issued, and the deposition was taken and filed. John F. Stephens as proponent moved to strike this deposition because the notice to Mary J. Jones as proponent was null and void, she not being the proponent in fact. This motion was sustained, and complaint is made of the ruling. The record does not disclose who filed the second will. During the trial John F. Stephens testified that he was the proponent, and the case seems to be docketed as if he were, although in an application to take the deposition of a witness during the trial, Mary J. Jones in an affidavit filed for that purpose described herself as proponent, and as such secured an order for the taking of that deposition. Mary J. Jones was the principal, if not the sole, legatee or devisee under the second will, and Stephens was named therein as executor. At the time the notice was served there was no attorney of record in support of the will; but at that time Mary J. Jones by attorney had filed objections to the first will. Code, § 4689, provides for notice in such cases “on the opposite party.” Generally speaking a proponent is one who propounds a will for probate. Our statutes provide that a will may be deposited with the clerk of the courts, who shall file and preserve it until testator's death. Section 3277. And they also recognize that any one may be the custodian of a will....