Webber v. Sullivan

• Decision Date: 22 April 1882
• Parties: WEBBER v. SULLIVAN AND OTHERS.
• Court: Iowa Supreme Court

58 Iowa 260

12 N.W. 319

WEBBER

v.SULLIVAN AND OTHERS.

Supreme Court of Iowa.

Filed April 22, 1882.

Appeal from Marshall circuit court.

The plaintiff and proponent filed what purported to be the will of A. C. Barttell, and asked the same be admitted to probate. In a pleading by them filed the defendants and contestants admitted the “instrument, purporting to be the last will of said A. C. Barttell, was duly executed by said Barttell,” but they objected to its being admitted to probate on the grounds “that at the time of the execution of said instrument said decedent was, by reason of old age, bodily and mental infirmities, totally incapacitated from making a valid will,” and “that said instrument is not the will of said A. C. Barttell, for that the same was obtained by the fraud of Roxy Barttell, the wife of the deceased.” Trial by jury; verdict for proponent; judgment; and the contestants appeal.P. M. Sutton, W. A. Foster, and J. H. Bradley, for appellants.

Brown & Carney, for appellees.

SEEVERS, C. J.

The evidence is not before us, but it tended to prove that at the time the will was executed the testator was 68 years of age; that he had been twice married, and was divorced from his first wife in 1864, by whom he had 10 children, and to whom he devised $5 each. Why he did not give them more is thus stated in this will: “For the reason why I did not give each of them more is, I have heretofore assisted each in money and property, and in bringing them up, in schooling, etc., their equal proportion of my estate.”

The testator married his last wife in 1865, by whom he had two children, who were minors at the time the will was executed in 1879. He moved to Iowa in 1865, and the children by his first wife, with a single exception, remained with her in Michigan. The greater number of said children are poor, and the others in moderate circumstances. During the testator's last illness he was visited by one of said children, of whom he affectionately spoke, and said he had made a will giving his wife one-third of his property and dividing the remainder equally among all his children; that he knew no difference between them. About one year previous the testator executed a similar will, which he destroyed, except he gave the son he brought to Iowa with him a a horse, which was received by him, and he devised two acres of land to each of his wife's daughters by a previous marriage, in lieu of certain money of theirs he had received. A Mr. Worcester prepared the first will, who told the testator it was essential to the validity of the will that he should give all his children something. Upon recovering from a severe illness he demanded said will of Worcester, saying he desired to make some changes, and upon receiving it he destroyed such will.

The present will was drawn by Mr. Patrick. The testator was sick in bed at the time. He told Patrick he desired to give each of his children by his first marriage five dollars each, and Patrick make a memorandum of the provisions. He seemed lost and confused, and could not give the names of his children, and Mrs. Barttell was called in to aid him. Patrick went to his office and drafted the will, read it over to the testator, and rewrote it. Patrick asked him if that was his will. The testator answered: “It is just as I want it.” While Patrick testified the testator “seemed slightly confused,” he was “of sound mind.” There was evidence tending both ways as to the mental capacity of the testator.

At the time of his death the testator owned real and personal property of the value of $8,800, but was indebted in the amount of $2,400. He devised one-third to his wife, and divided the remainder equally between his two minor children by her. There was no evidence tending to show that Mrs. Roxy Barttell, the testator's wife, knew the contents of the will when it was executed, or that she used any influence over the testator in relation thereto, or that because of her influence the provisions of the will are in any respect different from what they would otherwise have been.

1. The contestants sought to prove the “condition of the children of the first marriage at the time they lived at home, from their births till the decedent came to Iowa, and what was their clothing, and what decedent had given them. Also, that they had had scanty clothing, scarcely any schooling or school privileges, and that they had worked for their father without recompense till they were married and went to establish homes for themselves. That they were dutiful and kind and obedient to their father.” Upon objection being made by the proponent the court refused to permit said evidence to be introduced.

It is said the proposed evidence was admissible for the purpose of showing the recitals in the will are false, and the provisions thereof unjust and unreasonable. The evidence related to a time from 15 to 30 years prior to the execution of the will, and the only statement therein the evidence tended to show was false was that said children had received their “equal proportion of my estate.” In the absence of any evidence tending to show undue influence on the part of Mrs. Barttell, or that the testator had reached the conclusion he seems to have adopted by reason of false representations made by Mrs. Barttell, the proposed evidence was immaterial. If undue influence has been shown, or the recitals in a will have been induced by false representations, or that it is unjust in its provisions, such matters may in such event become material. Under such circumstances they become make-weights as aids to the evidence which tends to show undue influence. It is difficult to say that a false conclusion reached by a testator, based on facts within his own knowledge, or which he believes he knows, is...