Ward v. Sears, 48970

• Decision Date: 18 September 1956
• Docket Number: No. 48970,48970
• Citation: 247 Iowa 1231,78 N.W.2d 545
• Parties: Daniel F. WARD, Emma F. Waters, Mary C. King, Mary D. Brueck, James E. Waters and Rosemary A. Underwood, Appellees, v. Richard O. SEARS and Richard O. Sears, Executor of an Instrument purporting to be a Last Will and Testament of Elizabeth M. Johnson, Deceased, Appellant.
• Court: Iowa Supreme Court

Page 545

78 N.W.2d 545

247 Iowa 1231

Daniel F. WARD, Emma F. Waters, Mary C. King, Mary D. Brueck, James E. Waters and Rosemary A. Underwood, Appellees, v. Richard O. SEARS and Richard O. Sears, Executor of an Instrument purporting to be a Last Will and Testament of Elizabeth M. Johnson, Deceased, Appellant.

No. 48970.

Supreme Court of Iowa.

Sept. 18, 1956.

R. Buell Smith, Robert B. Dickey, Hollingsworth & Hollingsworth, William L. Hollingsworth, Keokuk, for appellant.

McManus & McManus, E. J. McManus, Keokuk, for appellees.

OLIVER, Justice.

April 2, 1953, Elizabeth M. Johnson signed a will giving 'all * * * the property of which I may die possessed and especially Lot 5, in Block 104', etc., (her home in Keokuk) to defendant, Richard O. Sears, a neighbor to whom she was not related. Mr. Sears was nominated executor without bond. She died April 29. Her estate amounted to at least $25,000, and consisted of her home and $20,000 in bonds and money.

The will was admitted to probate. Later her heirs at law, related to her as cousins and second cousins, brought action to set aside the admission of the will to probate. The issues submitted to the jury were lack of testamentary capacity and undue influence. The verdict found the will invalid. From judgment against defendant thereon, he prosecutes this appeal.

Mrs. Johnson was aged about seventy or eighty years and had lived alone in her home since the death of her husband in 1950. Defendant Sears had done yard work, etc., for her and, each day since Christmas, 1952, had brought her a meal from his home. March 19, 1953, the sheriff served two notices upon her. One was an original notice of an action instituted against her by the chief of police. The petition stated she was living alone, had no close relatives, was not getting proper food, her house was in an unsanitary condition, she was not able to properly take care of her business affairs, and that a guardian should be appointed to see that she had proper food and housing. The other notice was of a hearing upon 'an application for the appointment of a temporary guardian to take care of your business affairs.' The guardianship action was brought by the attorney who had represented Mrs. Johnson in probating her husband's estate which had been closed for some time.

From March 20 until her death Mrs. Johnson was confined to her bed. Mr. Sears was there much of the time. March 26, he brought the original notice of the guardianship action to the attorney's office stating, 'Mrs. Johnson had no objection to the guardianship, just so she didn't have to go to the hospital * * *.' Thereupon, the secretary for the attorney went to Mrs. Johnson's home and secured her signature to an instrument which stated, 'defendant * * * enters her appearance and consents to the appointment of a permanent guardian and asks the court to appoint Richard O. Sears as such guardian.' He was appointed and qualified March 26.

The attorney who instituted the guardianship action became attorney for the guardian. His connection with that matter had started some months previously when Mrs. Johnson's sister-in-law, Mrs. Erhardt, asked him to have Mrs. Johnson sent to the mental hospital at Mount Pleasant, stating she thought Mrs. Johnson was of unsound mind. He declined but called upon Mrs. Johnson and tried to get her to go to a hospital. She refused. Later he tried to get the welfare department to take action. It investigated, found she had sufficient assets to care for herself and declined to act. After that he prevailed upon the chief of police to sign the guardianship petition as plaintiff, telling him Mrs. Johnson was living alone and in filth and that her mind was not just right for her to take care of herself. Some time later Mr. Sears thanked the chief of police for signing the petition for a guardian and tucked a $10 bill into his pocket.

About April 2, Mr. Sears told the attorney Mrs. Johnson wanted him to draw a will for her. The attorney came to the house in the forenoon of April 2. Mr. Sears conducted him to Mrs. Johnson's bedroom. An employee of Mr. Sears remained in the bedroom. 'I was just listening to the will.' 'Well, I have gone through trials before, and I think there should be a witness, so I just stood there.' The attorney asked Mrs. Johnson what she wanted to do in regard to the house. She answered by talking about an obstruction in the alley. He again asked her 'what she wanted to do in regard to the house to which she replied that she wanted Dick (Sears) to have everything.' The attorney left the room. Mr. Sears escorted him from the house. He returned to his office and prepared the will.

That afternoon the attorney's secretary came to the house with a witness and the will was signed in their presence and in the presence of Mr. Sears and Mrs. Lorenz, a practical nurse employed by him. The witnesses agree Mrs. Johnson did not then have the use of a hearing aid. Her nurse, Mrs. Lorenz, testified her eyeglasses were broken. The witnesses testified the attorney's secretary read the will to Mrs. Johnson after which Mrs. Johnson took the will out of her hand and read it herself and said that was the way she wanted it, and then she signed it. Because the word Elizabeth was signed on top of the word Johnson and the middle initial was omitted 'it then had to be resigned.'

Nearly all of the testimony above referred to was given by defendant and his witnesses. Two witnesses for defendant, the attorney and his secretary, expressed the opinion she knew what property she had, to whom she could leave it and to whom she intended to give it. The doctor who testified for defendant was not asked and did not give an opinion she was of sound mind. He testified she had high blood pressure, particularly some cerebral arterial changes which led to a stroke, April 28, which caused her death April 29. She couldn't move her extremities, arms, legs and muscles, or control her urine. Her ailments would be progressive with time. You could have these ailments 'and still know what you are doing; still be rational. She could have all these conditions and still know what property she has.'

Mrs. Lorenz testified that the day after the will was signed she said to Mrs. Johnson, 'You know you signed your house away.' Mrs. Johnson answered, 'Now I don't have to go to the hospital.' Miss Boyer testified Mrs. Johnson told her, 'I signed a paper that said I wouldn't have to go to the hospital.' The record does not show the source from which came her misinformation the will was such a 'paper.' The record does indicate she had an abiding fear she would be placed in a hospital.

No statement or conduct of Mrs. Johnson affirmatively shows she realized that the bulk of her estate was cash and bonds. Apparently she considered it was practically limited to her home. The single exception perhaps is the testimony of the attorney that, to his question what she wanted to do in regard to the house, she replied, 'she wanted Dick to have everything.' The will merely mentions all her property and especially lot 5, etc., her home. To a suggestion by Miss Boyer that she should sell her property and go to a hospital, Mrs. Johnson replied, 'Mr. Sears said he would help her. He was having the papers made out so she could sell it, and all she would have to do would be to sign it.' Miss Boyer told her she ought not sign anything in the condition she was in. Miss Boyer testified also that Mrs. Johnson told her she had made a will leaving everything to her husband's folks. Mrs. Fry testified Mrs. Johnson told her, 'Mr. Sears wants my home.' Mrs. Fry told her such a gift must be in writing, to which Mrs. Johnson replied, 'Well, that is what he says.'

Decedent's long time friends, her sister-in-law Virginia Erhardt, Mrs. Fry and Miss Boyer, a retired school teacher, observed decedent during frequent visits to her home, prior and subsequent to April 2. They testified that some time prior to 1953 Mrs. Johnson kept herself and her house clean and orderly; after that she seemed to fail quickly and didn't want to do anything about it. She was able to get around the house until the last two months of her life but had lost control of her bowels and kidneys and walked as though her limbs were paralyzed. Her hair, body, clothing, bedding and house became indescribably filthy from human excretions, etc., and had an almost unbearable odor. She refused to change her clothing or bedding, and at times went around nude. 'She was just rags and dirty and wet.' She was very feeble, had lost her sense of smell, was unable to hear without a hearing aid and used eyeglasses which had belonged to her deceased husband and did not fit her eyes. The money from her pension and social security payments was kept in a drawer and she appeared with a 'whole lapful, so much money that it fell all around on the floor.' Some of it was in the form of $50 bills. She didn't cook groceries purchased for her. 'They just laid there and spoiled.' She didn't like anybody. She didn't like Mr. Sears very well. She thought he charged her too much for cutting the grass. She would pay no attention to visiting friends who were trying to converse with her, and would pace back and forth without noticing them. She offered to give her home to Mrs. Fry who didn't consider it because of Mrs. Johnson's mental condition. She imagined people were in the house at various times. She didn't care for company. 'She didn't care to associate with the neighbors. She didn't care anything about anything.' Toward the last (before the guardian was appointed) she had not enough mentality to tell what groceries she wanted.

During that period Miss Boyer selected the groceries, and was careful to sign the grocery slips and leave them at the house. She testified Mrs. Johnson didn't request an accounting of the grocery money and apparently did not realize this was an accounting, but, 'I didn't think she knew what she was doing, and I thought...