Storbeck v. Fridley

• Decision Date: 14 June 1949
• Docket Number: 47384.
• Citation: 38 N.W.2d 163,240 Iowa 879
• Parties: STORBECK v. FRIDLEY et al.
• Court: Iowa Supreme Court

38 N.W.2d 163

240 Iowa 879

STORBECK v. FRIDLEY et al.

No. 47384.

Supreme Court of Iowa

June 14, 1949

Hart & Hart, of Elkader, for appellant.

L J. Ehrhardt, of Elkader, for appellees.

HALE, Chief Justice.

August F Stockbeck died in Clayton county, October 6, 1946, his only heirs being the plaintiff, Eldo Storbeck, and the defendant Celia Fridley, son and daughter. His will, executed October 22, 1945, left all his property to his dauther, Celia Fridley, and appointed her executrix of the will which was admitted to probate on October 14, 1946.

Decedent Storbeck was committed to the Independence State Hospital for Insane on February 14, 1946, and he was kept in that institution until he died October 6, 1946.

On December 17, 1946, plaintiff-contestant filed a petition in the district court to set aside the order of probate and that such order be declared null and void and not the will of the deceased. The grounds alleged in such petition were lack of mental capacity and undue influence of defendant. The answer of defendant-proponent was a denial and the cause was submitted to a jury on the issue of mental unsoundness only. Verdict for the defendant and plaintiff appeals, alleging various errors and irregularities in the trial.

I. Plaintiff charges that the court erred in holding that there was sufficient evidence to sustain the jury's verdict. He urges that there must be a fact foundation for a lay witness' testimony that deceased was sane or competent. Citing Conway v. Murphy, 135 Iowa 171, 112 N.W. 764, a guardianship case which holds that the value of the opinion expressed by a witness depends upon the support it has and the facts testified to by the witness. This is the rule universally recognized.

The case of Mileham v. Montagne, 148 Iowa 476, 125 N.W. 664, 666, cited by plaintiff, does not support plaintiff's argument. Of course the value of the testimony of a lay witness depends upon the facts testified to by him, but the opportunity for observation and the extent of the transactions with the person under inquiry, even if limited, does not prevent the witness from testifying to his sanity if there is such opportunity. But a lay witness may testify to unsoundness of mind only after stating sufficient facts to support his conclusion. The lay witnesses in the present case were a number of acquaintances and neighbors. See, Niedermyer v Neidermyer, 237 Iowa 685, 22 N.W.2d 346; In re Estate of Mott, 200 Iowa 948, 205 N.W. 770; In re Estate of Hanrahan, 182 Iowa 1242, 166 N.W. 529; In re Estate of Cooper, 196 Iowa 116, 194 N.W. 218. The witnesses had opportunity for observation and had more or less contact with decedent.

II. Plaintiff urges that the expert witnesses in the case were disqualified. We cannot agree with this contention. One assailed, Dr. H. M. Anderson, had attended the deceased as a physician from September to December, 1945, and testified as to his condition. This witness was a regularly qualified physician. A regular practicing physician is usually regarded as qualified to give an opinion on the mental condition of a patient. See, Miller v. Miller, 237 Iowa 978, 23 N.W.2d 760, citing Monahan v. Roderick, 183 Iowa 1, 166 N.W. 725; In re Harmsen, Iowa, 167 N.W. 618. Plaintiff further cites Tracy v. City of Mt. Pleasant, 165 Iowa 435, 146 N.W. 78, 148 N.W. 637, which was a condemnation case, and an expert from another state was not permitted to testify to the value of land; also, Boyles v. Cora, 232 Iowa 822, 6 N.W.2d 401. These cases do not tend to bear out plaintiff's contention. We find no error here.

III. Plaintiff assigns as error the action of the court in permitting defendant to introduce evidence inadmissible because of lack of foundation. The defendant objects to the manner in which plaintiff in his brief assigns the error, charging that this was a blanket assignment. However, reference is made by plaintiff to Rule 344, subd. (a)(4), Rules of Civil Procedure, and plaintiff appears to have complied sufficiently with that rule as to show the manner in which the alleged error arose and the ruling of the trial court. We shall consider certain specific objections.

Plaintiff argues that the court erred in permitting, over plaintiff's objection, the introduction of exhibit 7 which was a purported prior will of the deceased. This instrument was dated in May, 1928. It did not conform to the will in controversy and testator's property was differently devised and bequeathed.

Defendant cites various cases in support of the court's ruling, none of which exactly conform to the situation here. However, various cases are cited under the Annotations in 82 A.L.R. 964, in which the editorial comment is: 'Where the issue is testamentary capacity, it is generally held that former wills executed by the testator are admissible in evidence when they were made at a time as to which the competency is unchallenged, and when they are in substantial conformity with the provisions of the contested will. Such evidence shows that the testator had a constant and abiding scheme for the distribution and disposal of his property, and thus tends to refute a charge of want of testamentary capacity.' [38 N.W.2d 166] And 82 A.L.R. on page 966: 'Former wills of the testator made at a time when his capacity is unquestioned, and which contain provisions inconsistent with the will in question, may be admitted on behalf of the contestant in support of an allegation of testamentary incapacity.'

IV. The will offered here, however, was not inconsistent with the provisions of the will in controversy if we consider the changes and circumstances among all the parties from 1928 on to the execution of the second will. At the time of the execution of the first will decedent's wife was living, but subsequently the wife and one of his sons died. In a sense, the first will may be said to conform to his intention of making provision for his family. There was no such inconsistency as to show a marked change mentally, nor was there anything to indicate that he was not of sound mind at the time of the execution of the first will. We find no error in the admission of this prior will.

Plaintiff also alleges that the court was in error in denying him the right to cross-examine defendant's expert witnesses in regard to material matters connected with the direct examination. The objection refers to plaintiff's cross-examination of an expert witness of the defendant when the plaintiff asked such witness whether, if the question had included other matters to which the plaintiff called his attention, his answer would have been the same. The court sustained an objection to that question on the ground that it was not a proper statement of the record--not confined to the record.

The court is given wide discretion in the admission of evidence on cross-examination, yet that discretion is not unlimited. Hoffman v. Cedar Rapids & M. C. Railway Company, 157 Iowa 655, 139 N.W. 165, Ann.Cas.1915C. 905. See, also, Ewing v. Hatcher, 175 Iowa 443, 450, 154 N.W. 869; Taylor, Adm'r, v. Star Coal Co., 110 Iowa 40, 81 N.W. 249.

Considerable latitude is given, however, to the cross-examination of expert witnesses in that it is not necessary that the examiner confine himself to the facts established in the case. See, In re Estate of Austin, 194 Iowa 1217, 191 N.W. 73; In re Will of Bever, 93 Iowa 576, 61 N.W. 1072; Madsen v. Obermann, 237 Iowa 461, 468, 22 N.W.2d 350, and cases cited; Dean et al. v. State et al., 211 Iowa 143, 151, 233 N.W. 36, and cases cited, including Glassman v. Chicago, R. I. & P. R. Co., 166 Iowa 254, 147 N.W. 757.

It is stated in the Dean case that the trial court has the discretion in such matters (the extent of cross-examination), but it has been said in some of the cases that only after the right of cross-examination has been substantially and fairly exercised, that its allowance becomes discretionary. In the case at bar the holding of the majority of the court is that there was no reversible error in sustaining the objection to the question on cross-examination as above set out, for the reason that the question itself was confusing and that many of the matters included in the cross-examination were directly contrary to the matters asked in direct examination, and that the question was almost unintelligible. The reason given by the district court for excluding the answer to the question was that the question was asked about matters not within the record. This reason may have been wrong, but the ruling of the district court was right. The majority of the court hold, a holding with which the writer does not agree, that the court did not abuse its discretion considering the circumstances and the form of the question, so as to be prejudicial or to require reversal.

V. Plaintiff argues, when the evidence shows deceased was suffering from a disease of the mind of a permanent and progressive nature, party alleging sanity has the burden of proof. Citing In re Estate of Jones, 130 Iowa 177, 106 N.W. 610; In re Will of Bever, supra.

The Jones case does not hold as claimed, but an instruction is criticized which tends to hold that the burden had shifted. All that the Bever case holds is that when general mental unsoundness is shown the burden is upon proponents to show that the will was made when the testator was of sound...