Wendt v. Foss

• Decision Date: 12 April 1913
• Citation: Wendt v. Foss, 161 Iowa 122, 140 N.W. 881 (Iowa 1913)
• Parties: WENDT v. FOSS ET AL.
• Court: Iowa Supreme Court

161 Iowa 122

140 N.W. 881

WENDT

v.FOSS ET AL.

Supreme Court of Iowa.

April 12, 1913.

Appeal from District Court, Crawford County; M. E. Hutchinson, Judge.

Action to set aside the probate of a will and to have the same declared null and void because of mental incapacity and undue influence.At the conclusion of plaintiff's testimony, defendants moved for a directed verdict.This motion was sustained, and plaintiff appeals.Affirmed.B. I. & L. H. Salinger and Ralph McLean, all of Carroll, for appellant.

Conner & Lally, of Denison, for appellees.

DEEMER, J.

What purports to be the last will and testament of Henrietta Rath, deceased, was, upon due notice, admitted to probate in the district court of Crawford county on September 12, 1905; and this action to set aside the probate thereof, and to have the will declared null and void, was commenced October 29, 1909.The grounds for setting it aside, as stated in the petition, were: “Plaintiff further states that the said paper so admitted to probate was not the last will and testament of the said Henrietta Rath, deceased, for the reasons following, among others: That said will was procured by the undue influence of Rosa Foss, Ernest Foss, and Annie Foss, all three of whom directly exercised such undue influence over said decedent in the making of said will that it was not her voluntary act and free will.That at the time of the writing of said will, and for some time prior thereto, said decedent was subject to undue influence of said parties named, and that undue influence resulted directly in the said decedent making the said purported will, and the said will was the product of the undue influence, coercion, and duress of said parties named.That said decedent at the time of the writing and signing of said paper and for some time prior thereto was not of sound and disposing mind and memory and capable and able to make a will, nor of sufficient mind and memory to intelligently dispose of her property as contemplated by law, nor of sufficient capacity mentally to make a lawful will.”The answer admitted the probate of the will and denied each and every other material allegation in the petition.Upon these issues the case went to trial to a jury, with the results before stated.

Appellant contends that the court was in error in directing a verdict for the reasons: (1) That there was testimony tending to show that the will was never, in fact, executed.(2) There was sufficient testimony of mental incapacity to take that issue to a jury.(3)The court erred in striking out testimony of declarations made by testatrix and in refusing to receive evidence of the same character.(4) There was sufficient testimony of undue influence to take that issue to the jury.

The last of these propositions is not argued separately, but it is so bound with and related to the issue of incapacity that we may assume it is in the case.It may as well be said at the outset that we find no sufficient testimony to take the issue of undue influence to a jury.Whether or not there was enough to carry the issue of mental incapacity to that body, we shall consider in another paragraph of this opinion.

II.For appellant, it is contended that sufficient testimony was adduced to take the question of the making of the will to a jury.In other words, it is argued that there is testimony showing, or tending to show, that testatrix never, in fact, executed the paper which, it is claimed, is her last will and testament.Upon this proposition, appellee asserts: (a) That no such issue was made by the pleadings; (b) that there is no testimony to overcome the presumption arising from the probate of the will that it was properly executed.

The will, which was admitted to probate, bears date of January 24, 1902, and it is witnessed by Albert Hellsley and Chas. C. Kemming; but there is no statement except by inference as to when the will was in fact witnessed by them.Inferentially, perhaps, it may appear that it was witnessed on the day it was signed.It disposed of testatrix's property, in the following manner:

“I give devise and bequeath to Franz Rath whom I have raised the sum of ten ($10.00) dollars to be paid to him out of my estate by my executor hereinafter named he to have and to hold the same forever.

I give devise and bequeath to Annie Voss daughter of Ernest Voss the sum of one thousand ($1,000.00) dollars out of my estate, to be paid by my executor as soon as can be done after my decease, she to have and to hold the same forever.

All the rest residue and remainder of my estate after the payment of legacies hereinbefore bequeathed, I give devise and bequeath in manner following: To my daughter Lena Wendt wife of John Wendt one-seventh (1-7) of the remainder of my estate, and to my daughter Rosa Voss, wife of Ernest Voss six-sevenths (6-7) of the remainder of my estate each to have and to hold (the respective 1-7 and 6-7 of real and personal estate remaining and bequeathed to them) the same forever.”

Without objection, Frank (Franz) Rath was permitted to testify, as follows: “* * * My grandmother, Mrs. Rath, did not understand any English.During the month of January, 1902, I stayed with her, taking care of her because she was sick.I wasn't of age then.I was there three months.I was there all the month of January, 1902.I know Albert Hellsley and C. J. Kemming, or C. C. Kemming, Charles C. Kemming.They were never in my grandmother's house any time during the month of January, 1902.No will was made by my grandmother during that month.I was there all the time taking care of her except two afternoons I was with my uncle to town.Those two afternoons were quite in the first part of the month.”On cross-examination, he said: “* * * I say this will was not made in January, 1902.I am pretty sure about that.I am pretty positive that this will was not made when it purports to have been made.It wasn't made when it purports to have been made, and I know it wasn't because there was nobody there to make it.I just stayed there and camped right there by it.I never came away except the early part of January.I was away two days, not hardly that.Q.Otherwise and at all times during the month you know you were right there, Johnny on the spot.A.Yes, sir; Johnny on the spot.Q.And Albert Hellsley and Charley Kemming could not have been out there on the 24th of January, because if they had been you would have seen them, wouldn't you?A.I had ought to have seen them; I was not blind and I would have seen them if they were there.”This is the only testimony upon which appellant relies, as showing, or tending to show, that the testatrix did not, in fact, execute the paper which was admitted to probate as her last will and testament; but counsel strenuously contend that it was sufficient to take the question of the due execution thereof to a jury.

[1]We are constrained to hold that the pleadings, as filed, did not raise the issue of due execution.True, the petition alleges, as a conclusion, that the paper was not the last will and testament of Henrietta Rath; but it further proceeds to name the reasons for this conclusion, to wit, undue influence and mental incapacity.We do not overlook the fact that these reasons were selected from others, which, by reference, might have been relied upon; but the others are not stated, and, because of that fact, the fair presumption is that the pleader did not intend to rely upon them, feeling, no doubt, that those mentioned were sufficient.By the introduction of the words “among others” nothing was added to the reasons why the paper was not the last will and testament of the testatrix.In other words, the pleader selected, from among the various reasons which might occur to him, the ones upon which he desired to bottom his objections, and by this selection he must be bound.If this were not the rule, he could, upon appeal here, make any claim which would go to the validity of the will, such as that it was not properly signed or witnessed; was forged or altered; or canceled; or revoked.Surely such a construction should not be placed upon a pleading in which the pleader has selected and named his grounds of attack, selecting these from others which he might, but did not in fact, mention.It will be observed that the pleader first stated his conclusion that the paper was not the last will of the deceased, and this was followed by his reasons for the conclusion, each stated specifically and with precision.The fair, if not necessary, inference is that, no matter what the other grounds for setting it aside, the pleader selected and named those upon which to base his attack.It is true the testimony, which we have quoted, was taken without objection, and it may be that defendants are precluded from claiming that the issue was not in the case.

[2] Under familiar rules, a case may be so tried as that an issue not squarely pleaded may be considered as in the case, for the reason that the parties tried it as if the issue were made, and this is the most that can be claimed for appellant.We are rather disposed to this view of the case, because one of the...