Zinkula v. Zinkula

• Decision Date: 21 September 1915
• Docket Number: No. 30143.,30143.
• Citation: 154 N.W. 158,171 Iowa 287
• Parties: ZINKULA ET AL. v. ZINKULA ET AL.
• Court: Iowa Supreme Court

171 Iowa 287

154 N.W. 158

ZINKULA ET AL.

v.ZINKULA ET AL.

No. 30143.

Supreme Court of Iowa.

Sept. 21, 1915.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Action to set aside the probate of a will. Trial to a jury. At the conclusion of plaintiffs' testimony, a verdict was directed for defendants. Plaintiffs appeal. Affirmed.Wade, Dutcher & Davis, of Iowa City, for appellants.

Ney & Bradley, of Iowa City, for appellees.

GAYNOR, J.

On the 7th day of March, 1912, Frederick Zinkula executed the following will:

First. I direct that all my lawful debts and claims, including funeral expense, expenses at last sickness and the expenses of administration, be first paid out of my estate.

Second. I give, devise and bequeath to my son, Joseph Zinkula, the following described real estate situated in Johnson county, Iowa, to wit: The N. 1/2 of the S. W. 1/4 and the E. 1/2 of the S. W. 1/4 of Sec. 29, Twp. 78 N., R. 5 W. of the 5th P. M., containing 100 acres, on condition that my said son, Joseph Zinkula, pay to my wife, Katherine Zinkula, the sum of $120.00 annually, each and every year, during her life.

Third. I give, devise and bequeath to my beloved wife, Katherine Zinkula, during her life, the following described real estate in Johnson county, Iowa, to wit: The N. E. 1/4 of the N. E. 1/4 of Sec. 31 and the N. W. 1/4 of the N. W. 1/4 of Sec. 32, also the W. 1/2 of the S. W. 1/4 of the S. W. 1/4 of Sec. 29, all in Twp. 78 N. of R. 5 W. of the 5th P. M. containing 100 acres, to be by her used during her life, and after her death the same land described in item third of this will to be and become the property of my son, George Zinkula, absolutely.

Fourth. I direct and it is my will that the following described forty acres, to wit: The S. E. 1/4 of the S. W. 1/4 of Sec. 29, Twp. 78 N., R. 5 W. of the 5th P. M., be sold by my executor hereinafter named for the best price obtainable, and the proceeds thereof be equally divided among my six daughters, to wit: Magdalina Simpson, Katherine Schintler, Anna West, Barbara Anderlik, Mary Hotz, Rose Zinkula, share and share alike.

Fifth. I give, devise and bequeath to my son, Frank Zinkula, the following described real estate situated in Johnson county, Iowa, to wit: The N. 1/2 of the S. W. 1/4 of section 9, Twp. 78 N., R. 5 W. of the 5th P. M., on condition that my said son, Frank Zinkula, pay to my wife, Katherine Zinkula, the sum of $120.00 annually, each and every year during her life.

Sixth. To my son, Frederick Zinkula, who left me when I needed him most on the farm, I hereby give and bequeath the sum of $5.00, and no more, out of my estate.

Seventh. I give, devise and bequeath to my daughter, Rosa Zinkula, the following described real property situated in Iowa City, Iowa, to wit: The E. 1/2 of lot six and the W. 1/2 of lot seven in block 16, Iowa City, Iowa, except 25 feet off of the east side of said W. 1/2 of lot seven in said block 16, subject, however, to a life estate therein of my wife, Katherine Zinkula, who is to use and occupy the same during her life.

Eighth. I give, devise and bequeath to my beloved wife, Katherine Zinkula, all the rest and remainder of my estate, she to have all the moneys and evidences of money, in lieu of dower in addition to the provisions otherwise herein made for her, she to have the remainder herein mentioned and the use thereof for and during her life, same to be used and disposed of according to her pleasure, and if any of said personal property remain undisposed of by my said wife at the time of her death, I give, devise and bequeath all such residue and remainder to my six daughters mentioned in item four herein, same to be divided among them in equal shares, share and share alike.

Ninth. I hereby nominate and appoint John Tellin of Iowa City, Iowa, executor of this my last will and testament, and direct that he be not required to give any bond as such executor.

The testator died on the 9th day of May, 1913, and this will was duly admitted to probate thereafter. At the time of his death he was 73 years old. His wife was 64 years old. He left surviving him his wife, five sons, and six daughters, and two grandsons, the offspring of a deceased daughter. This action is brought to set aside the order of probate on the alleged grounds:

First. That the said Frederick Zinkula, at the time of the execution of the will, was of unsound mind, and did not possess testamentary capacity.

Second. That the execution thereof was procured by undue influence exerted upon him by the defendants, and the same was not his free and voluntary act and deed, and, therefore, does not constitute and is not his last will and testament.

The defendants appeared and denied the allegations upon which plaintiffs base their right to have the will set aside. The cause was tried to a jury. At the conclusion of contestants' testimony, the court, on the motion of proponents, directed a verdict against the contestants. Hereafter, for convenience, we shall refer to the contestants as plaintiffs and proponents as defendants.

Plaintiffs appeal, and urge two grounds for reversal:

First. That the court erred in its ruling upon the admission of testimony in certain particulars, to which attention will be hereinafter called.

Second. The court erred in sustaining a motion to direct a verdict for the defendants, under the record as made.

We will take up the grounds for reversal in the order assigned: Did the court err in the rejection of testimony as charged by the plaintiffs?

To intelligently consider these complaints, it will be necessary to review somewhat the condition of the record at the time this evidence was rejected by the court. It may be well, however, to have the matter complained of in mind while the record is being reviewed.

The first error relied upon is that the court erred in rejecting a certain letter offered in evidence, written by the intestate to his daughter Magdalina, dated March 18, 1909. This letter is shown to be in the handwriting of the testator, and received by the daughter in due course of mail, and reads as follows:

“Well, I thought to write you a few lines, to let you know how we are getting along. We are all well with that bad weather. Every day we have different weather. One day it is nice, next day it rains, and the third day it is frosty, so it is queer weather this year.

I was at our children on the farm last week. I was there three days, I visited them all there, and they are all well. I must also let you know that our Annie is going to the farm; they are going to move next Monday. They sold their house and rented a farm about 3 miles west of town, so they are going to farm. I don't know how they will get along; everything that they must buy is so dear, and they have to buy everything, so I wonder how they will get along.

David Simpson was here last week. I was coming from town and met him on the street. I came near not recognizing him. He stopped and offered me his hand, and I couldn't recognize him, he looks sort of sickly. So I told him to go with me to dinner, but he did not want to go with me; he was afraid of that wicked mamma of ours. He went with the other man to Schintler's, and I went there, too; then I don't know when they went home. I didn't see them any more.

So, when you write, let me know when Rosie wrote you, and if you are all well. Write also if you have that cistern finished; if not, then have it made, and I will pay for it what it will cost.”

The second error assigned is predicated on the ruling of the court in rejecting the testimony of Katherine Schintler, a daughter of the testator. She was asked by plaintiffs' counsel this question:

“Q. Did you have any talk with your mother as to what your father had to do about his property?”

The plaintiffs' counsel stated at the time that this offer was to show feeling between the mother and the girls who are contestants. Objection was interposed to the question and sustained.

The third error in the admission of testimony is predicated upon the action of the court in sustaining an objection to the following question propounded to Mary Hotz, daughter of the testator, while testifying for the plaintiffs:

“Q. Were there any times when you heard your mother say what your father should do with his property in reference to the girls--whether they should get it, or should not get it?”

This is asked for the purpose of showing the feeling that existed between the mother and the girls.

The fourth error assigned on this point is that the court erred in striking out the testimony given by Michael Zinkula, a son of the testator, in which he said:

“I heard mother speak about her feeling towards the girls. She told me one time she did not want father to give any more property to the girls. I asked her why. She said she wouldn't let him.”

It appears that this testimony, as to what was said by the mother, related to a time after the execution of the will, and was stricken out for that reason. These are all the errors assigned upon the first ground for reversal.

[1] As to the first error complained of, involving the action of the court in rejecting a letter written by the testator to his daughter Magdalina, the 18th day of March, 1909, we have to say that, in view of the theory upon which this case was tried, we think this letter might well have been admitted by the court. Plaintiffs seek to maintain two positions: (1) That the father was very friendly towards the daughters, wished them well, and had a kindly interest in their welfare. (2) That the mother was hostile to the daughters, and had no kindly interest in their financial condition; that she did not wish the girls to have any of the father's property.

[2] But, however, we cannot reverse the case upon this ground, for, although this letter has some bearing upon the issue made, it touches so slightly upon the point contended for that its exclusion cannot be deemed prejudicial, in view of the fact that the court...