Willesen's Estate, In re

Decision Date18 October 1960
Docket NumberNo. 49999,49999
Citation105 N.W.2d 640,251 Iowa 1363
PartiesIn the Matter of the ESTATE of Anna WILLESEN, Deceased. Edwin WILLESEN and Charles Willesen, Appellants, v. OUR SAVIOUR'S EVANGELICAL LUTHERAN CHURCH OF AUDUBON, Iowa, Audubon County Hospital, Audubon County, Iowa, Appellees.
CourtIowa Supreme Court

Raun & Franck, Denison, and George Hurley, Harlan, for appellants

Dale D. Levis and L. L. Ryan, Audubon, and Fred Louis, Jr., Harlan, for appellees.

PETERSON, Justice.

This case involves a contest as to the will of Anna Willesen, deceased, who departed this life at age 62 on June 11, 1957. Under her will executed in 1950, she bequeathed 80 acres to Our Savior's Evangelical Lutheran Church of Audubon, Iowa; the proceeds of the sale of 160 acres to be divided one-half to Board of Trustees, Audubon County Hospital, Audubon, Iowa, and the other one-half equally between her two brothers, Edwin and Charles Willesen; any residue to be equally divided between said four parties.

Edwin and Charles Willesen filed contest. The one ground of contest which was submitted to the jury was whether or not L. K. Madsen, the attorney who prepared the will, had exercised undue influence over decedent. The jury decided in favor of proponents. Contestants have appealed.

Mr. and Mrs. Rasmus Willesen were pioneer residents of Audubon County. They were immigrants from Denmark. Rasmus was a hard working and thrifty farmer. He accumulated 720 acres of Audubon County land. They had five children. Hans and Peter died early in life, leaving as surviving children Edwin and Charles, the contestants herein, and Anna, the decedent. Mrs. Willesen died in 1937 and Rasmus died in 1949. A few years prior to his death Rasmus deeded all his land to his three children; 240 acres to each; reserving a life estate.

Anna always lived at home with her parents. After her mother's death she lived with and cared for her father until his death. An uncle lived with her for about three years after her father's death. After that she lived alone on her farm until her death.

Several witnesses testified Anna was retarded mentally. She had illnesses at one year of age and at four years of age which affected her normal mental development. She only attended school through the fifth grade. Such witnesses also testified concerning her habits of life. They stated it was difficult for her to read any words containing more than four letters. They said she was very slovenly as to her clothing and careless as to her bodily cleanliness and eating habits; permitted not only cats and dogs, but also chickens to come into the house regularly; her home was filthy at all times.

There was contradictory testimony as to her mental development and her activities. Several witnesses testified she rented and supervised her farms of 240 acres; was engaged in the raising and selling of many chickens each year and in disposing of eggs and of her crops from her rentals; she purchased what was necessary for her farming operations and for her food. She paid her taxes, made extensive repairs on her property, had a substantial bank account and until 1955 wrote and signed all checks for such operations.

As to the matter of her reading and writing she was a regular subscriber to the Audubon County paper and to the Des Moines Register. She made a detailed report each year to Christensen and Madsen, income tax men, in her own handwriting, as to the value of all buildings on her farms for the purpose of depreciation credits. She made reports as to all receipts and all deductible expenditures for her income tax reports. Samples of items on her list of expenses for 1950: 'Infantile paralysis $5; Audubon Hardware Kitchen Cabinet $28.51.'

Many checks were introduced in evidence, written from 1950 to 1953. Her handwriting was very legible, and the letters and words were above average as to their formation. As a sample of what she wrote, several checks were introduced to 'Des Moines Register'; several to 'South Crawford Rural Electric'; one to 'Audubon News Guide'; one to 'Conklin Grain & Lumber Co'; and one to 'Danish Mtl fire insurance.'

Anna Hansen, her cousin, testified she stayed at the Willesen home for a month when her Uncle Rasmus was sick, and she saw Anna reading the newspapers. Anna's reports and the checks, acknowledged without conflict to be in her own handwriting, are not consistent with the charge of inability to read only four letter words.

She became acquainted with Mr. L. K. Madsen, an attorney at Audubon, about 1940. He had formerly lived in Audubon and then left for some years, but returned in 1939 and entered into a partnership with C. P. Christensen in the insurance and real estate business, and at the same time established himself in the law business. Starting in 1940 the partnership prepared Anna's income tax returns from year to year until her death. During the first thirteen years Mr. Christensen prepared the returns. At that time the partnership was dissolved. Mr. Christensen left the firm and Mr. Madsen prepared the returns for 1953 to 1956 inclusive.

In 1949 after the death of her father, Anna had some legal business in connection with the State Tax Commission by reason of explanation of income between her father during his lifetime, and her income. Mr. Madsen was not attorney for the Rasmus Willesen estate, but she had him represent her in connection with clearing up the income tax question. In 1955 she had further business association with Mr. Madsen in connection with the purchase of a home in Audubon. She thought she wanted to move to town. However, her brother Edwin objected and the transaction was cancelled. It was agreed at said time that her brother Edwin would countersign her checks thereafter.

The only other legal business Anna had with Mr. Madsen, was that in 1950 she had him prepare the will involved in this litigation. It was prepared on December 20, 1950, and mailed to her on that date, with a letter of which copy was introduced in evidence. On December 22, 1950, having received the will through the mail, Anna came to Audubon to sign it before the witnesses. Mr. Madsen telephoned the First State Bank asking them to admit her, as it was after banking hours. She took the will to the bank and signed it in the presence of Albert A. Kruse, the Executive Vice President, and Mrs. Henryette Van Gorder, the President. Mr. Kruse testified: 'I asked Anna if that was her will at the bank and she said at was. If she had said it wasn't there wouldn't be much point in signing it as a witness. To the best of my recollection she said she had read the will.'

Rasmus Willesen and his wife had been members of the Lutheran Church in Denmark. It was the custom of the Danish Lutheran Church that after they become members at the time of infant baptism they automatically remained as members during their life, unless voluntarily changing membership by joining some other church. Mr. and Mrs. Willesen did not attend the Lutheran Church in Audubon regularly, but never joined any other church. However, Rasmus contributed and both he and his wife, and one of their two sons that died, were buried from the church.

The children attended a Methodist Sunday School and in later years Anna attended the Methodist Church at Gray, Iowa. Her farm was located about two and one-half miles from the church. In 1953 she joined the Methodist Church at Gray. Throughout the years from the death of her father until her death she contributed regularly to Our Savior's Evangelical Church at Audubon. The minister of the church visited her regularly. Her name was on the annual report of the church as a contributor, which report was printed and mailed to all contributors.

Appellants assign the following alleged errors: 1. Trial court erred in permitting proponents' counsel to ask Attorney Madsen about twenty questions, to which objections were all sustained, and that counsel was guilty of misconduct in pursuing such a course of interrogation. 2. Trial court erred in admitting copy of a letter written by Madsen to Anna Willesen enclosing the will. 3. Trial court erred in not withdrawing from the jury the question of whether or not the testatrix could read or comprehend the will. 4. Trial court erred in not setting aside the verdict of the jury and granting a new trial on grounds that the verdict does not effectuate substantial justice, and is against public policy in that it approved bad legal ethics. 5. Trial court erred in not permitting Elsie Willesen to testify concerning conversations between her husband, decedent and Madsen in 1955.

When a will is executed according to the formalities required by law, it is presumed in the first instance that the testator was acquainted with its provisions. Ross v. Ross, 140 Iowa 51, 117 N.W. 1105; In re Estate of Armstrong, 191 Iowa 1210, 183 N.W. 386; In re Estate of Lewman, 239 Iowa 563, 30 N.W.2d 737; Ipsen v. Ruess, 239 Iowa 1376, 35 N.W.2d 82; In re Estate of Klein, 241 Iowa 1103, 42 N.W.2d 593.

When a contest is filed as to a will on the grounds of fraud, duress or undue influence the burden of proof rests upon the contestant. In re Heller's Estate, 233 Iowa 1356, 11 N.W.2d 586; In re Estate of Huston, 238 Iowa 297, 299, 27 N.W.2d 26, 28; In re Klein's Estate, 241 Iowa 1103, 42 N.W.2d 593, 598; In re Hadley's Estate, 241 Iowa 1280, 45 N.W.2d 140, 145.

In In re Heller's Estate, supra [233 Iowa 1356, 11 N.W.2d 592], this court said: 'The burden of proving undue influence and that it operated upon the mind of the testator at the very time the will was executed and to such an extent that the will was the result thereof and not the voluntary act of the testator, was upon the contestants.'

I. Proponents' counsel asked L. K. Madsen, the attorney who prepared the will, and the executor appointed by testatrix under the will, approximately twenty questions as to the preparation of the will; mailing it to Anna; its execution, and its deposit with...

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