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5. WILLS (§ 332*)-UNDUE INFLUENCE-SUG- | had died years before; they had no children, nor no dependents, excepting a nephew, Roy

GESTIONS.

Qualified by the condition, as to mental capacity, an instruction in a will contest that; "if testatrix had capacity to make a will," it would be immaterial that suggestion as to a bequest to the local Y. M. C. A. came from her counsel, and that he, with others, organized such local association to enable her to make such a bequest, is correct.

Downs, who because of physical and mental infirmities had been the special object of

solicitude of both Mr. and Mrs. Martin. During his lifetime Mr. Martin had accumulated a large estate, the bulk of which upon his death passed to his wife under his will.

[Ed. Note.-For other cases, see Wills, Cent. She had at the time of her death been a Dig. 785; Dec. Dig. § 332.*]

6. WILLS (§ 53*)-TESTAMENTARY CAPACITYEVIDENCE.

Evidence that testatrix had left to the other settlement of an estate of which she was joint testatrix is not admissible to show want of testamentary capacity.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 111, 112, 120-130; Dec. Dig. § 53.*] 7. WITNESSES (§ 140*)-COMPETENCY-TRANSACTIONS WITH DECEDENT.

A beneficiary under a will, though she will take nothing if it is defeated, and though offered as a witness by contestants, is within Code, § 4604, declaring that no person interested in the event of an action shall testify to personal transactions with a decedent against

a legatee or devisee of decedent.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 598-618; Dec. Dig. § 140.*] 8. EVIDENCE (§ 471*)-CONCLUSIONS.

Questions asking a witness to state "what difference you saw or observed in her physical condition or the condition of her mind from the past years and the last two years," and "what you observed in her mind, as to wheth

er she could remember or concentrate

her

mind," are objectionable as containing elements of conclusion, as distinguished from facts.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 2149-2185; Dec. Dig. § 471.*] 9. WITNESSES (§ 240*)—EXAMINATION-LEAD

ING QUESTIONS.

Such questions are also objectionable as leading in character.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. $ 795, 837-839, 841-845; Dec. Dig. 240.*]

10. EVIDENCE (§ 501*)-NONEXPERT OPINION -MUTUAL CONDITION-FACTS FORMING BA

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resident of Mills county for over 50 years, and with her husband and after his death, had been deeply interested in religious and charitable objects. Aside from Roy Downs, for whom she made substantial and ample provision in her will, none of her relatives had other claims upon her bounty than that resulting from their collateral relationship. She died about six months after the execution of the will in controversy. Upon the offer of her will for probate, objections were filed by some of her relatives (two sisters and nephews and nieces), charging that the execution of the instrument was procured by undue influence, and also that at the time of its execution she was of unsound mind.

The evidence introduced on the part of contestants tended to show that Mrs. Martin had many of the infirmities incident to old age, and also that there were evidences of mental weakness, indicated by despondency followed by exaltation, distrust of the motives

of her friends and relatives who came to visit

her, and refusal at times to see them; that she often talked to herself, would cry without apparent cause, would manifest feelings of anxiety without reason, would sign checks relating to her business without reading them, would forget recent important transactions, and was addicted to the frequent use of whisky, against which her nurse advised her; that during the last two years of her life her mind had become weak so that at the time of the execution of the offered instrument she was wanting in the necessary capacity to make a will. Cross-examination, however, lessened the force of much of this testimony. There also was evidence of other incidents and features of her life and habits which contestants offered in support of their charge, and which tended to support their claim, but which were not so different in general effect from those stated as to require detailed mention.

To support the charge of undue influence, the contestants depended upon the facts bear

Will contest on the grounds of unsoundness of mind and undue influence. Issue of undue influence withdrawn from the jury. Question of unsoundness of mind submitted. Verdict for proponents. From an order admitting ing upon unsoundness of mind and weakened will to probate, contestants appeal. Affirmed. John Y. Stone, Genung & Genung, and C. E. Dean, all of Glenwood, for appellants. Gillilland & Logan, of Glenwood, for appellees.

WITHROW, J. 1. On March 7, 1910, Elizabeth Martin executed an instrument offered for probate as her last will and testament. Prior to that she had at different times executed five or six other wills. Her husband

and failing powers, together with the following: For some years Mrs. Martin had employed Mr. Gilliland as her business and legal adviser at a fixed annual compensation. She had relied largely upon his judgment as to the securities offered for loans, although it is shown that one time at least she declined to accept one offered loan with its security, stating that she did not care to make it. A few days prior to the execution

of the instrument in controversy, feeling that her health was failing and that her end might be near, she directed her nurse to send for Mr. Gilliland to assist in the preparation of her will, the last of the previous wills executed by her not fully meeting her desires. Her adviser came, accompanied by his partner, Mr. Logan. According to the testimony of the nurse, Mrs. Martin told her attorney that she wished to make a will the heirs could not break. All of the testimony as to this transaction fairly shows that there was at the time a full discussion between Mrs. Martin and her counsel as to the disposition she wished to make of her property. She recognized her accepted duty towards Roy Downs, and wished suitable provision to be made for his support. She said that she did not care to leave anything to her sister Mrs. Anderson, as she had plenty for her comfort during her life. Her inclination, after a few substantial personal bequests, and for the support of Roy Downs, was to dispose of her estate by giving it to religious and charitable purposes. Mr. Gilliland suggested that if she was so disposed, a gift to Tabor College would be along the lines of her general purpose. To this she objected, stating that she wanted to leave her money where her husband's business had been, in Mills county. It was then suggested by Mr. Gilliland that, as she wished to make a gift to perpetuate her memory, she recognize the Y. M. C. A. of Glenwood. This seemed to appeal to her, and finally after discussing the plans and work of the association she decided to make it a beneficiary. At this time the organization in Glenwood had not been completed, and her counsel advised a postponement in executing the will for a few days. This was agreed to; and on the following day the organization of the Y. M. C. A. in Glenwood was perfected, Mr. Gilliland and Mr. Logan being active in the movement. A few days later the will was executed, carrying bequests to one sister, nephews, nieces, provision for Roy Downs, and substantial gifts to a hospital at Omaha, to one at Council Bluffs, to Martin's Chapel, the church home of her husband and herself, and to the Glenwood Library. To the Y. M. C. A. of Glenwood she bequeathed the sum of $10,000, to be known as the Elizabeth Martin memorial fund, with a further sum of $5,000 to be a part of said fund; the income of the latter to be devoted to the support of Roy Downs during his lifetime. The estate disposed of was about $40,000 in value.

It is claimed by the contestants that the will as thus executed carried out the purpose of Mr. Gilliland and his associate Mr. Logan, and not that of Mrs. Martin; that the nurse who was present at the time it was first considered was not permitted to remain in the room while the subject was under discussion; and that Mr. Logan accompanied his associate to aid by their joint efforts in

procuring the gift to the Y. M. C. A. It appears, however, that the nurse first suggested that she should leave the room, and that Mr. Logan had gone to assist Mr. Gillilland who, by reason of an injured arm, was unable to write. Upon the conclusion of contestants' case in chief the court withdrew from the consideration of the jury the question of undue influence.

The evidence on the part of the proponents tended to show that Mrs. Martin was a woman of good mental powers for her years; that she had a quick and accurate understanding of her business affairs; that the use of liquor which had been claimed to be excessive was moderate, not as a beverage, but to secure relief from an irritation of the throat. Friends and neighbors who had known her for many years visited her about the time of the execution of the will, before and after, and saw nothing to indicate unsoundness of mind; and a physician who had treated her at different times called upon her late in March following the time the will was signed and testified that she was then of sound mind. It is unnecessary to set out the testimony more in detail. Enough has been presented to indicate a conflict in facts. It was shown that in its general terms and purposes, excepting the gift to the Y. M. C. A., the will was in substantial harmony with previous wills, varying in details where change to her seemed proper, and that at the time of its execution she intelligently considered its terms and appreciated its effect.

We have set out at considerable length so much of the testimony as will indicate the nature of the controversy, which does not differ materially in a general way from many other cases of this character. Upon the facts the jury returned a verdict for the proponents. The verdict has support in the evidence. We turn then to a consideration of the errors urged.

[1] 2. The first error assigned is that the verdict is against the weight of the evidence. This has been considered above in a general way. More definite treatment is not required. There was no error in submitting the case to the jury.

[2] 3. The second and third assignments of error relate to the charge of undue influence and the action of the lower court in withdrawing that question from the jury. The relation existing between Mrs. Martin and Mr. Gilliland was that of attorney or business adviser and client. Where it is shown that confidence and reliance is reposed in him, and the attorney secures from his client that which is to his own advantage or for the benefit of an object in which he is interested, without reasonable explanation for such gift, the burden of proof rests upon him to show the transaction was in good faith. Good v. Zook, 116 Iowa, 582, 88 N. W. 376. In the present case, however, the

[6] 7. Objection was sustained to the offer by contestants of the probate records of Mills county, showing the proceedings in the estate of Milton Martin, husband of testatrix; its purpose being to show that she was joint executrix, and that the estate has never been settled. A colloquy of counsel at the time of the offer disclosed the fact that the estate had been settled, with the exception of the matter relating to Roy Downs, and that there could be no final settlement during his lifetime. The most that could be claimed for this evidence would be that it tended to establish, by negative proof, that, although joint executrix of a large estate, Mrs. Martin took no interest in its settlement. Why she chose to leave the transaction of its business to her coexecutor we cannot conclude from the record, nor can we infer from it that such was because of a want of capacity. The ruling was right.

evidence on the part of contestants quite | struction was, by the conditions as to her clearly showed that Mrs. Martin sought her mental capacity, there was no error. counsel for advice; that she was not clear as to the best use to make of her property; but that she had a general purpose which she desired to carry out, and wished to be advised as to the objects of a religious character most worthy to be remembered. She, of course, had the right to call upon her business agent for such advice, and he had the right, and in view of their relations it was a duty, to meet her request, so long as by so doing he did not violate the confidence of his relation to her. In this case Mr. Gillilland did not profit personally by the will, nor did his associate. True, an organization in which both were interested received substantial recognition. It was along the line of Mrs. Martin's expressed desire. Under such a state of facts as here appear, there did not arise such a condition as to raise reasonable question as to the good faith of her adviser or to change the burden of proof. On the contrary, the record was so wanting in facts to sustain the charge of undue influence that the lower court was warranted in its action in taking that question from the jury and in giving instruction No. 20, of which complaint is made.

[3] 4. The nineteenth instruction is criticised. In it the jury was told that "as her legal adviser he (Gillilland) had the right, and it was his duty, to assist her in arranging the disposition of her property and to make such suggestions as would assist her in determining what disposition she wished to make thereof, leaving to her, however, the right to decide what disposition she would make." We find no error in the instruction. As qualified, it correctly gives the law.

[4] 5. The fifth assignment of error criticises the matter immediately preceding the nineteenth instruction, in view of the evidence introduced and withdrawn upon the question of undue influence. The assignment is wanting in definiteness; but, assuming it to relate to the eighteenth instruction, we find in it no error, as it clearly states the rule that the juries have not the right to substitute their own judgment for that of the testatrix. We believe this rule cannot be too strongly emphasized in presenting to trial juries cases of this nature, when feelings of sympathy may be urged and are sometimes successful in overthrowing a rational and intelligent disposition of property by will.

[5] 6. Error is charged in instruction No. 21, wherein the jury were told that if testatrix had capacity to make a will it would be immaterial that the suggestion as to the Y. M. C. A. came from Mr. Gilliland, and that neither would it be material that he, with others, organized the association at Glenwood for the purpose of enabling her to

[7] 8. A witness, Marian Kemp, offered by contestants, was not permitted to testify as to personal transactions with decedent, she being a beneficiary under the will. This is presented as error. It is claimed that her testimony was adverse to her interest, and therefore not within the prohibition of the statute; that under the will she would receive $500; that she would have testified against her interest, and if her evidence prevailed with the jury she would lose her bequest, and, not being an heir, would receive nothing. Code, § 4604, provides that "no person * * * interested in the event of any action shall be permitted to testify to personal transactions with a decedent, against a legatee or devisee of such deceased person," etc. Broadly stated, the position of counsel for appellants is that to disqualify the witness her interest must be adverse to that of decedent or her representatives, or adverse to the party against whom the testimony is offered. It will be conceded that there is force in the contention. The proposition has support in many states, where the holdings are that, unless the interest is adverse, the reason for the rule fails and the statute does not apply. This court, however, has adopted the construction that where it is shown that the witness is interested in the event of the suit, that interest being a present, tangible, and valuable one which may be increased or diminished by the result of the action, the prohibition of the statute applies, and the ruling of the lower court was in harmony with it. Donnell, Adm'r, v. Braden, 70 Iowa, 553, 30 N. W. 777.

[8-10] 9. A witness, M. F. Depree, offered on the part of contestants, was asked to state "what difference you saw or observed in her physical condition or the condition of her mind from the past years, and the last two

the witness was then asked to state "what you observed in her mind, as to whether she could remember or concentrate her mind." To this the same objection was made. To these rulings contestants excepted and now claim error, relying upon Manatt v. Scott, 106 Iowa, 212, 76 N. W. 717, 68 Am. St. Rep. 293. It is competent for a witness to relate facts upon which to his mind mental unsoundness may depend, and if proper basis is laid to then give his opinion. Contained in the questions above are elements of conclusion as distinguished from facts, which warranted the lower court in its ruling. Other questions to the same effect were asked the witness, which he was not permitted to answer. In addition to the objection particularly urged, they were leading in character. We cannot say that the court erred in not permitting them to be answered. The questions not having been answered, there was no basis for the opinion of the witness as a nonexpert as to mental condition of Mrs. Martin.

Upon the whole record we find no substantial error, and the order of the lower court in admitting the will to probate is affirmed. Affirmed.

WILLSON v. BECK et al. (Supreme Court of Iowa. June 3, 1913.) 1. BOUNDARIES (§ 47*)-ESTABLISHMENT-ACQUIESCENCE-ESTOPPEL.

Proceeding to quiet title upon petition and cross-petition. Decree, from which both parties appeal. Affirmed on defendants' appeal. Modified and affirmed on plaintiff's appeal. F. H. Helsell, of Ft. Dodge, for appellants. Francis & Owen, of Spirit Lake, for appel

lee.

WITHROW, J.

Defendants' appeal was first perfected, and in this opinion they will be designated as the appellants.

By petition filed in the district court of Dickinson county, plaintiff (appellee) claimed to be the owner in fee simple of lot 67 of block 1, in Haskell & Smith's First addition to Okoboji Park, according to the recorded plat thereof; said plat having been duly executed and recorded August 22, 1889. That the plat describes and plats said lot 67 as bounded on the west by West Okoboji Lakė, and upon the north and east by the public highway; said lake forming the west line thereof, and the public highway forming the north and east line, the highway extending down to the lake shore, bringing said lot to a point at its north end. That plaintiff's immediate predecessors in right were three Crawford sisters, to whom conveyance was made by defendant J. A. Beck and A. E. Haskell, then joint owners; and at the time of such conveyance the highway had been dedicated by the execution of the plat, and had been laid out and established as the same is now situated; and that Beck in selling said lot to the Crawford sisters pointed out to them and sold to them the property known as lot 67, which plaintiff claims by particular description to be as follows: "A tract of land beginning at the northwest Corner of lot 66 of block 1, of said Haskell & Smith's First addition to Okoboji Park; said point being marked by a stone, which stone bears south 63 degrees and 48 minutes west from the northeast corner of section 19, township 99, range 36 west, of the 5th P. M., in Dickinson county, Iowa, and is 2,743 feet distant therefrom, running thence north 50 degrees east on a line between lot 66 and lot 67, of block 1, of said Haskell & Smith's First addition, aforesaid, 126 feet; thence north 261⁄2 degrees west along the westerly side of the public highway a distance of 266 feet; thence north 57 degrees west along the southwesterly side of said public highway a distance of 115 feet to the shore of West Okoboji Lake; thence south 20 degrees east along the easterly shore of West Okoboji Lake a distance of 175 feet; thence south 15 degrees east along the easterly shore of West Okoboji Lake a distance of 225 feet to the place of beginning." ever since said property was platted lot 67, as above described, has been used and occupied by plaintiff and his immediate granAppeal from District Court, Dickinson tors. and they have had and held open and County; A. D. Bailie, Judge. uninterrupted adverse possession of said

Where a grantor pointed out to his grantee at the time of sale a traveled road as the boundary of the lot designated on a plat disclosing an untraveled platted road, and also pointed out to a third person purchasing the lot from the grantee the traveled road as a boundary, and the grantee and the third person claimed to the traveled road and occupied and used with valued improvements the lot to the traveled road, the grantor, as between himself and the grantee and third person, was estopped from denying that the boundary was the traveled road.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 227-231; Dec. Dig. § 47.*] 2. ADVERSE POSSESSION (§ 68*)-NATURE OF POSSESSION.

Possession of real estate evidenced by acts done by the purchaser will not ripen into title by adverse possession where the acts were consistent with ownership or with the idea of a harmless encroachment on unoccupied property committed without the idea of securing a right in the property.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 387-393; Dec. Dig. 68.*]

3. DEEDS (§ 112*) DESCRIPTION

ARIES.

BOUND

A grantee of a lot designated on a plat will take only according to the plat measurements where the description in the deed is indefinite and where the grantor did not point out the boundaries so as to include other land. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 323, 324; Dec. Dig. § 112.*]

That

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

to Beck, all of plaintiff's improvements are upon the lot as found to belong to him.

[1] 1. The original plat of lot 67 shows it to be triangular in form, its base being the north line of lot 66, with a width of 82 feet; its west or shore line commencing at the

the meanderings of the lake for a distance of 192 feet, and there connecting at its apex with the west or southwest line of a highway designated as Lake Shore Road, thence southeasterly for a distance of 174 feet to the northeast corner of lot 66 as platted.

premises. That the defendants have never made claim to any part of said lot until recently, when, in plaintiff's absence, the defendants Mrs. J. A. Beck and Mrs. W. P. Jaquith took possession of a portion of the same, and without his knowledge or consent, and have refused to surrender posses-northwest corner of lot 66, thence following sion, and as plaintiff is advised, make some claim of ownership. That during all of the years of their occupancy plaintiff and his immediate grantors, under claim of full title, have made valuable improvements upon said lot, and have continuously claimed all of said premises as a part of lot 67. He pleads that defendant J. A. Beck had knowledge of such and of the claims of plaintiff and his grantors, and that he is estopped from asserting any claim to any part of said premises. Decree is prayed quieting his title.

The following plat used by both parties will aid to a better understanding of the situation and of the claims of the parties:

The defendants, not admitting plaintiff's ownership of lot 67, say: That the property in dispute with other lands was platted in 1888, so as to make separate and salable lots on West Okoboji Lake. That in 1895, J. A. Beck, defendant, became the owner of the land thus platted. That at all times since then the original plat has been of record, giving full notice of the description and size of the lots, and that by such plat it is shown that the land side or east side of said lot was 175 feet in length and no more, extending from the northeast corner of lot 66 as platted; and that plaintiff's claim of ownership, outside of lot 67 as so platted, is of land not included in lot 67, which is the property of defendant J. A. Beck; and denies that plaintiff or his grantors have had adverse possession or any rights in said land outside of said lot 67 as bounded and designated by said plat.

Defendants plead estoppel against the plaintiff, based upon the claim that with knowledge of what they were so doing and of their claims, and without objection, he permitted valuable improvements to be made by them upon the property in dispute. The defendants further plead that, before purchasing, the plaintiff was informed orally of the corner of the said lot, and that he cannot now assert legal or equitable title to the outlying land. Upon the facts pleaded by way of defense, J. A. Beck bases his crosspetition and prays for affirmative relief.

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The evidence is clear that the Lake Shore Road, as platted, was never used as a way of public travel; that the character of a portion of the ground over which it was platted was broken, and the road as actually traveled and publicly used was some distance to the east, as indicated on the plat. That which was platted as Lake Shore Road was never replatted for any purpose, but was used by adjacent owners without restriction. The defendant Beck is shown to be, or to have been at the time which is material to our inquiry, the owner of the land on both sides of the road as platted and the road as used. After this purchase from him, with his knowledge, and without objection, the Crawford sisters, grantors of plaintiff, built their cottage at the place designated on the plat, a considerable part of it being outside of the lot limits as claimed by the defendant Beck, and during the seasons it was under their exclusive control. After his purchase the plaintiff made other improvements, among them a barn, which is situated east of the Lake Shore Road as platted and west of the traveled highway. This was done with the knowledge of the appellant Beck, without objection on his part, and with no

The lower court decreed that plaintiff is the owner of a tract of land, including all of lot 67, as claimed by defendants to be the true lot, and in addition land immediately adjoining it, limiting the northern boundary to the point designated by the plat, but extending it easterly to the highway as traveled along the highway to a point in line with the southeast corner of the lot, and thence by line connecting the highway with said Corner. The remainder of the tract in dispute was decreed to be the property of defendant J. A. Beck. With the exception of

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