Worth v. Pierson
| Decision Date | 12 February 1929 |
| Docket Number | 39036 |
| Citation | 223 N.W. 752,208 Iowa 353 |
| Parties | MARY WORTH, Appellant, v. MILTON PIERSON, Executor, et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED MAY 17, 1929.
Appeal from Cass District Court.--J. S. DEWELL, Judge.
Action to set aside a will previously admitted to probate. At the close of plaintiff's testimony, upon motion of the defendants, a directed verdict was returned in their favor and judgment was entered accordingly. Plaintiff then filed a motion for a new trial, which was overruled. From the order overruling the motion for a new trial, the plaintiff has appealed.
Affirmed.
Swan Martin & Martin, for appellant.
The last will and testament of Elizabeth S. Pierson and also a codicil thereto were admitted to probate on the 29th day of April, 1926. The will was executed February 7, 1924, and the codicil on February 4, 1925. By the terms of the original will, the plaintiff was bequeathed the sum of $ 10. All the residue of the estate was bequeathed in one-eighth parts to the other sons and daughters of the testatrix and to the grandchildren, being children of two deceased sons. The codicil in terms confirms the original will, but provides that, if any one of the children or grandchildren should be indebted to her at the time of her death, such indebtedness, or notes owed, shall be distributed to them as a part of their share of the estate. The will names Milton Pierson as executor, without bond, and provides that, in the event that he is unable, for any reason, to act as such executor, her son, James Pierson, shall act as such executor, without bond. Milton Pierson qualified, and is now acting as executor of said estate. All of the legatees of the testatrix are parties to this suit. In what the plaintiff denominated "Amended and Substituted Petition," she alleges that the said Elizabeth S. Pierson executed said purported last will and testament and said purported codicil of said last will and testament by virtue of fraud, duress, and undue influence, and that, by reason of such fraud, duress, and undue influence, said instruments are not the last will and testament of Elizabeth S. Pierson. She prays therein that said instruments be set aside, and the probate thereof be set aside, canceled, and held for naught.
In an amendment to the "Amended and Substituted Petition," the plaintiff alleges that one Milton Pierson, the executor named in the last will and testament of Elizabeth S. Pierson, deceased, and one of the legatees therein, made false statements to the said Elizabeth Pierson in relation to the said Mary Worth, knowing that said statements were false, and knowing that Elizabeth Pierson would rely on the same, and that said Elizabeth Pierson relied upon said false statements made in relation to the character of said Mary Worth by the said Milton Pierson, and by reason thereof, destroyed a last will and testament in which the said Mary Worth was a legatee with a substantial interest in said estate, and made a new will and testament wherein the share of the said Milton Pierson was increased, and he was named as executor, and the share of the said Mary Worth was decreased to only $ 10; that the said will was the result of the fraudulent and deceitful conduct on the part of the said Milton Pierson in misrepresenting facts to his mother, Elizabeth Pierson, in relation to his sister, Mary Worth; and that, except for such false and fraudulent statements, the said Mary Worth would have inherited equally with her brothers and sisters.
The substance of defendant's answer is a general denial, except as to certain admissions therein made.
The plaintiff offered to prove by herself a conversation between her and her mother. Proper objection was made to the offer, as calling for a personal transaction or communication between the witness and the deceased, which objection was sustained. This action was clearly correct, as to have allowed the witness to answer would have been in clear violation of the provisions of Section 11257 of the Code of 1924.
We will first visualize the facts as shown by the record. The testatrix was 94 years of age at the time of her death, to wit, April 11, 1926. The original will was executed, as aforesaid, on February 7, 1924, and the codicil, February 4, 1925. The plaintiff, Mary Worth, was the oldest daughter of the testatrix, and at the time of the trial, was just past 74 years of age. For approximately five years prior to January 18, 1924, the testatrix had made her home with the plaintiff and her husband. After the latter date, she apparently made her home with her son Milton Pierson, until September 10, 1925, when she went to the home of her daughter, Sophrona Smith, at Mankato, Kansas, and remained there until the time of her death, April 11, 1926. The testatrix left the Worth home on the 18th day of January, 1924, and about two weeks later, her son Milton, with a taxicab driver, came to the Worth home for her goods, and the testatrix then said she was going to move to Milt's. It appears that there was not good feeling between the son Milton Pierson and his sister, Mary Worth. At the time of their leaving, the plaintiff made the statement that, if mother got sick, she wanted to hear, and her brother replied that he would not let her know anything if she (the mother) died. This conversation occurred in the presence of the mother.
It appears that plaintiff's husband, Tom Worth, in a general way, looked after her financial affairs during the time that the testatrix made her home with the Worths. During this period of time, he looked after the men who rented her place, drew her checks, etc. The banking business was done at a bank in Lewis, which the witness Kunze testifies was his bank. The record fails to reveal the name of said bank, which closed January 26, 1924. Sometime during that month, Milton Pierson and his mother went to the bank and demanded the papers belonging to the testatrix. The box containing certificates of deposit, a lease, and duplicate deposit tickets, notes, a sealed envelope, purporting to contain a will, Liberty bonds, and various other papers, was delivered to them. Sometime in May of 1924, Mr. Bryant and Mr. Pierson again went to the bank, at which time additional bonds in the amount of $ 250 or $ 300 were delivered. These bonds had not at any time been in Mrs. Pierson's box, but had been left at the bank for safe-keeping. The bank's receipt had been issued for them. It appears that these bonds had also been in another banking institution, the Oakland Savings Bank. Kunze testified that these bonds "were covered by receipts from our bank; that, at the time when Milt and his mother were there, they didn't ask for the bonds, and didn't present any receipt."
It thus appears that the bank was closed, and that the testatrix and Milton Pierson did have some difficulty in locating and getting possession of all of the bonds that belonged to her.
There was introduced in evidence a letter written by Milton Pierson, dated January 27, 1924, directed to Mr. H. C. Smith and family, in which he makes inquiry as to how much money his mother had on time deposit in the bank "when you folks came back with her, as Tom [the plaintiff's husband] said you figured it up he would not tell said he had never figured it but you had so she wants to know and so do I and write as soon as you get this for they have got her business in a bad shape and I want to know so we can get things fixed out straight for her." This letter was produced by a sister of the plaintiff's, Sophrona Smith, who resides at Mankato, Kansas. This witness also testifies that she heard a conversation between Tom and Mary Worth and Elizabeth Pierson, in which conversation she took no part, and in which the parties discussed the reason why Elizabeth Pierson took the handling of her business away from Tom and Mary Worth. This conversation occurred in October, 1925. She testifies:
Said witness also produced a letter written by Milton Pierson to his mother, under date of October 25, 1925, in which he says:
"I reckon old Flitterlip had lots to say I heard if she had stayed another week she would have killed you."
The letter is signed "M. P. Pierson, or old frozen rump." It is shown that, in referring to "Flitterlip" in the letter, he meant his sister, the plaintiff. Not much significance can be given to his use of the word "Flitterlip," as it is shown by the record that that was the plaintiff's nickname, by which she was recognized by other members of the family, as well as other people. It will be observed that Milton Pierson also had a nickname, by which he described himself in his signature to the aforesaid letter.
Tom Worth, the husband of the plaintiff, testified:
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