Vannest v. Murphy

• Decision Date: 10 June 1907
• Citation: 135 Iowa 123,112 N.W. 236
• Parties: VANNEST ET AL. v. MURPHY ET AL.
• Court: Iowa Supreme Court

135 Iowa 123

112 N.W. 236

VANNEST ET AL.

v.MURPHY ET AL.

Supreme Court of Iowa.

June 10, 1907.

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

Mary L. Murphy died testate May 28, 1904, and her will was admitted to probate in June of the same year. On July 27, 1904, the plaintiffs filed their petition, alleging that at the time of executing the will she was of unsound mind, and that the will was procured through undue influence exerted by W. P. Murphy. The trial resulted in a verdict for defendant, on which judgment was entered setting the will aside. The plaintiffs appeal. Reversed.Thomas Stapleton and Stockman & Hamilton, for appellants.

J. B. Murphy and J. M. Dower, for appellees.

LADD, J.

There are 38 assignments of error, all of which are argued by appellants. As counsel have ignored part of the rules in the preparation of their brief, we shall consider only such errors as require attention in view of another trial.

1. The question, “What did you observe with respect to her mental condition?” and like inquiries, were treated by the witnesses as calling for incidents bearing on the condition of the mind of deceased, and not for their opinion as to whether it was unsound. For this reason, the rulings permitting answers were without prejudice.

2. A witness testified that “she acted very childish, as though she had forgotten, as though she was childish,” and another that every time she had seen her for two or three years she seemed to have grown weak physically. While these answers are in the nature of conclusions, they related to matters which could not well be reproduced or described to the jury precisely as they appeared to the witness, and for this reason, under a well-established rule, were permissible. Yahn v. Ottumwa, 60 Iowa, 429, 15 N. W. 257;Bizer v. Bizer, 110 Iowa, 247, 81 N. W. 465;Stewart v. Anderson, 111 Iowa, 329, 82 N. W. 770.

3. One Powell, when on the stand, was asked “whether John R. Murphy came to your house one night in trouble,” and over objection answered, “Yes, sir. Q. You may detail what was said.” Over objection the witness then answered that he had come to his place after he had retired, and stated that he and Willie had had some trouble, and that Willie had run him off the place. This occurred 18 years before the trial. This was hearsay. Moreover, the evidence should have been excluded, as the circumstances were too remote, and could have had no bearing whatever on the issues in the case, save to prejudice the minds of the jury against Murphy. The same is true of the evidence of Mrs. Vannest, in which she related that some 18 years previous to the trial he had taken his gun and run his father off the premises, so that he stayed away all night. The evidence of Winnie Cash that she saw him throw his father on the porch, and that she and her aunt run out and kept him from killing him, about 11 years prior to the trial, should also have been excluded. The same is true as to the testimony of Mrs. Richard Murphy as to a like transaction. All this evidence was extremely prejudicial, and should have been excluded.

4. Vannest, as a witness, was allowed to detail a conversation with W. P. Murphy, in which he made certain declarations concerning advancements to him by his mother of money, and also to the other children. Such declarations were inadmissible under the well-established rule of this court. See Fothergill v. Fothergill, 105 N. W. 377, 129 Iowa, 93.

5. Testimony concerning conversations in the presence of the deceased, in which W. P. Murphy participated, and also of declarations of the deceased, were admitted over objections. The rulings were correct, as what Murphy said in the presence of the deceased was admissible as tending to show his relation with her, and that of her declarations was receivable as tending to show the condition of her mind and the effect of any influences, which may have been exerted, had produced thereon. See Johnson v. Johnson (Iowa) 111 N. W. 430;Hobson v. Moorman, 90 S. W. 152, 115 Tenn. 73, 3 L. R. A. (N. S.) 749.

6. With reference to expert testimony, the court instructed the jury that, if “the statements of fact, which are accepted as true for the purpose of answering the hypothetical questions are substantially correct, then you will give to said testimony such weight as you deem it entitled to; but in any case where a hypothetical question is not a correct statement of the facts, then in such case you will wholly disregard the answer.” The use of the word “substantially” is criticised. It means “in substance,” “essentially.” Hardin Co. v. Weels, 108 Iowa, 174, 78 N. W. 908. See 27 Am. & Eng. Ency. of Law (2d Ed.) 288. In the connection employed, it may have been understood to mean the facts must be found, not in the word, but in substance as recited. This is apparent from the direction to disregard the answer, unless the question contained a correct statement of the facts. The use of the word, however, in this connection, cannot be commended, for there is no assurance that the jury might not be misled thereby. The instruction was condemned in Re Jones, 130 Iowa, 177, 106 N. W. 610; as was also an instruction like that also given on nonexpert testimony.

7. In referring to the opinion of the nonexpert witnesses, the instruction reads: “These opinions were based upon their personal knowledge of the testatrix, and upon her acts and declarations known to them. You will carefully consider the facts and circumstances detailed by them, and give the various opinions of said witnesses such weight as you deem them entitled to, taking into consideration the knowledge, observation, interest, and candor, or lack of same, as shown by said witnesses while upon the stand. It does not follow that, because a witness, expert or nonexpert, has testified that the testatrix was of sound or unsound mind, you should so find; but you should take such opinions into consideration, and give them such weight and credit as you deem them entitled to, and therewith you should consider all of the facts and circumstances disclosed by the evidence, and from all of the same arrive at such conclusion upon the...