In Re Estate of Meyer

I respectfully dissent.

I. The last case of this kind decided by this court is Ipsen v. Ruess, 239 Iowa 1376, 35 N.W.2d 82. We there held, all justices concurring, the evidence of mental incapacity warranted submission to the jury. Study and comparison of the record and briefs now before us and those in the cited case lead to the conclusion this case is fully as strong as the Ruess case. Only the issue of mental incapacity was really involved in the cited case — contestants made no complaint of the withdrawal of the issue of undue influence. The two cases are strikingly similar.

Here testator died at seventy-seven on December 10, 1946, in the hospital for the insane at Mount Pleasant after twenty-five days' confinement there with senile dementia. Testator Ruess died at seventy-two October 7, 1946, in the same institution after sixteen days' confinement there with the same disease. Here testator's will was made August 11, 1943. The Ruess will was executed May 15, 1942.

Possibly contestants in the Ruess case offered more evidence of mental incapacity than was produced by contestants here. But much of the evidence in the cited case was from contestants themselves. Here much of the testimony is from disinterested witnesses. And the evidence of mental incapacity in each case is essentially of the same character. Here of course proponents offered no testimony. In the cited case (to quote from the opinion at page 1383 of 239 Iowa, page 88 of 35 N.W.2d):

"It is true there is an impressive array of witnesses for proponents who have drawn a quite different picture of testator. Some thirteen nonexpert witnesses, all apparently disinterested, most of them of long and rather intimate acquaintance (many of over thirty years) with testator, testified in effect they never observed any of the unusual matters related by contestants and gave their opinion he was of sound mind down to the time of his last illness in 1946."

In the cited case the doctors who examined and treated testator said he was of sound mind as late as 1945 and 1946 and the expert testimony favorable to contestants came from a doctor who had never seen testator. Here Dr. Ristine examined Mr. Meyer on November 15, 1946, and observed him the last twenty-five days of his life.

In the Ruess case there was no adjudication of mental incapacity until September 21, 1946, over four years and four months after the will was made. Here a guardian was appointed for testator's person and property December 27, 1943, four months and sixteen days after execution of the will. The decree recites, "John D. Meyer is incompetent and is not able by reason of such incompetency to properly manage his person and property." The guardianship petition prepared by testator's attorney on December 2, 1943, three months and twenty-one days after the will was made, states, "Meyer is wholly unable to manage his property because of the condition of his health and mind * * *; * * * defendant's property may become dissipated unless proper precautions are taken in the very near future."

In view of the evidence testator suffered from senile dementia from a time antedating the will and the showing as to the nature of that disease, the guardianship proceedings are properly to be considered. In re Estate of Austin, 194 Iowa 1217, 1223, 191 N.W. 73, and citations; annotations 7 A.L.R. 568, 575, 68 A.L.R. 1309, 1312, 168 A.L.R. 969, 999.

While we have said in the Ruess case (page 1383 of 239 Iowa, page 88 of 35 N.W.2d) and several earlier ones that "precedents are not controlling upon a question of this kind because the facts are usually not similar" the majority's decision here seems irreconcilable with our unanimous conclusion in the cited case. See also the recent decisions therein cited: In re Estate of Ring, 237 Iowa 953, 22 N.W.2d 777; In re Estate of Maier,236 Iowa 960, 20 N.W.2d 425; In re Estate of Grange, 231 Iowa 964,2 N.W.2d 635.

II. This record is too long to permit a review of all of it herein. I shall attempt not to set out evidence to which the majority correctly refers. Of course the testimony will be construed in the light most favorable to contestants. See Gregory v. Proffit, 239 Iowa 463, 468, 31 N.W.2d 899, 902; In re Estate of Maier, 236 Iowa 960, 968, 20 N.W.2d 425, 429, and citations.

Testator's attorney filed an application for the appointment of a voluntary guardian for Mr. Meyer on June 16, 1943, nearly two months before the will was made. The application recites "due to his advanced age and the general state of his health he is not able to properly manage or supervise his affairs." Testator was only seventy-four at the time and his physical health seems not to have been impaired until a few days before he died. It is fairly to be inferred Mr. Meyer's mental condition made this application necessary.

This application was preceded by discussions over a period of some six months between the attorney and testator's hometown bankers, all of whom were doubtless acting in good faith for Mr. Meyer's welfare. One of the bankers testified he felt from his experience with testator he needed a guardian at least as early as June 1943, and the witness did not consider him competent to handle such a simple business matter as the renewal of a certificate of bank deposit.

The judge to whom the voluntary application was presented refused to appoint a guardian. The reason for this refusal does not appear. Contestants argue it was because the judge felt Mr. Meyer was mentally incompetent to apply for voluntary guardianship. Whether this be true or not, the jury could find a guardian was then needed because Mr. Meyer was mentally incapable of renewing certificates of deposit and keeping track of his money and other things of value.

Let us consider now testator's condition on November 15, 1946, when Dr. Ristine examined him: "He didn't know where he was. He could make no correct answers to questions. He had no conception whatever of the passage of time; no recognition of people; he was extremely agitated, restless, taking bed clothing off of other patients' beds; getting lost and was in a general complete loss of mind, a condition we call senile dementia."

Dr. Ristine expressed the opinion from assumed facts the evidence tends to establish and from his examination and observation of him that Mr. Meyer was mentally incompetent and without testamentary capacity (it appears the witness clearly understood the meaning of this term) on August 11, 1943, and "he had quite positive signs of the dementia, which developed to a greater degree later, early in 1943 or possibly late 1942." Also, "Once established, senile dementia never gets better for the reason they suffer an actual loss of brain substance." Other testimony confirms Dr. Ristine's opinion.

For about two years before he was admitted to the hospital for the insane, of which Dr. Ristine was superintendent, testator stayed at the home of his sister, contestant Clara Meyer. For about the last year of this period Mr. Meyer's guardian made repeated efforts in different cities to find a hospital or home that would accept him but they all refused because he frequently ran away and required constant watching. This entry in the guardian's report, prepared by testator's attorney (one of proponent's attorneys here), is typical of the recitals therein: "April 1, 1946: (Also 3d 5th, 12th, 23d 24th) Was called on all the above dates to John D. Meyer home to take him home as he had wandered away. On April 24th he ran away from home five times and entered various homes. Ten hours and twenty-five miles with car."

In June 1945, at the home of his sister Clara, testator insisted on wearing a nephew's coat and hat because he believed they were his own and those present had "quite a time" getting them away from Mr. Meyer. Testator took a billfold from the nephew's coat, hid it in a dresser drawer, and within a few moments had forgotten what he had done. On this occasion Mr. Meyer insisted the nephew's car was his (Meyer's) and that the nephew pay his uncle for glass broken in the nephew's car.

In September or October 1944, in daylight, testator was lost and went to the home of a neighbor about two blocks from his own home in the small town of New London. He was looking for the home of his guardian in the opposite end of town. The neighbor escorted Mr. Meyer to his own home. "He didn't know where he was at until I got him to his own doorstep before he recognized his own home."

Early one morning in the summer of 1944 testator went to a dairy in New London and asked for a bottle of milk but said he did not have enough money to pay for it. He then took from his pocket "a whole handful of money" and the proprietor told him "You have enough money to buy all the milk we got." The proprietor gave him the milk, took a dollar from him and returned the change. Testator said he had walked in from the farm which was four or five miles from town. He was wet to his knees, apparently from wading in weeds or grass. It is to be inferred he was in a state of bewilderment.

In May 1944, Mr. Meyer was seen hiding in the bushes back of his house, he would get up and knock on the barn and then run back and hide in the bushes again. Similar performances were witnessed on two other occasions. Early one morning before testator went to live with his sister he imagined his wife, then confined in the asylum for the insane, was out in the rain during the night and asked his guardian so to notify the asylum.

In January 1944, testator urinated down the register in his home in the presence of lady callers. There is much evidence of filthy habits of this kind during this period. Numerous jars filled with urine were found in the pantry, bowel movements were on the floor, food was spoiled, there was no drinking water, the house was infested with mice. A year earlier, more than six months before the will was made, "His clothes were soiled pretty bad, the house was awful dusty and there was quite an odor in the house." Before 1942 testator was neat, clean and careful in his appearance.

In January 1944, testator imagined he had attended a sale north of Burlington and "bought a large bunch of horses." At this time he accused his guardian of "taking everything away from him" and threatened "if he monkeys around here I'll blow his brains out." At the guardian's request guns kept in Mr. Meyer's house were taken from him.

Testator ate Thanksgiving dinner in 1943 at the home of his niece Clara Totemeier in New London. His sister Clara Meyer and the Totemeier children were also there. Mr. Meyer was unable to help himself to the food and wanted to eat out of the main serving dish with a spoon. Although it was the usual Thanksgiving dinner he did not seem to know what the food was. After dinner he wanted to go home but did not know what direction to go and had to be taken.

Mrs. Henry Miller testified:

"A. He would go up the street or come back and would stop and want to go to his house but would always make a mistake and go into Mr. Swan's house and I would tell him `that isn't your home, Mr. Meyer,' but he seemed to think it was, so I kept telling him he lived next door but still he didn't think it was right; he would go around to the kitchen door and when he found out that door was locked he would go to the next place. This occurredquite often in 1943."

In the Spring of 1943 testator inquired at the Ford garage whether repair work on his car had been finished when he had never asked to have the work done.

The banker Eckey said that in 1942 and the early part of 1943 testator came to the bank in reference to certificates of deposit he thought he had lost. "I imagine several times a week he would come in about the same thing. He seemed to forget what I had told him before and he would come back for the same thing over."

The banker Cullen testified he first knew Mr. Meyer about 1938 or 1939 and last saw him in January 1943. "He was certainly much more confused or seemed to be having lots more difficulty taking care of his affairs when I last knew him than he did when I first knew him."

As the majority observes, attorney Vance said that in 1942 Mr. Meyer was confused and unable to comprehend what was necessary in order to get money for his certificates of deposit or get them duplicated.

There is other testimony to which no reference is made either herein or by the majority. However, I think enough has been mentioned to demonstrate that when construed most favorably to contestants there is substantial evidence of mental incapacity at the time the will was executed. Of course no one knows the precise moment at which the progressive, permanent mental disease which afflicted testator reached the state where he was deprived of testamentary capacity. I think the jury could properly find such state was reached, just as Dr. Ristine testified, prior to August 11, 1943. Had the making of the will been delayed a few weeks there is no doubt a jury question would have been presented.

What right has the majority to disregard the testimony of a reputable and apparently impartial alienist who examined testator, on the ground his opinion was based on a recital of facts "the law does not recognize as showing testamentary incapacity"? As Dr. Ristine testified, "We base our judgment of mental diseases on the abnormal things people feel, say and do * * *." Since when has the law not recognized such facts as are herein referred to as evidence of testamentary incapacity? And the doctor's opinion was based in part on his examination and observation of testator.

III. The majority asserts in its Division I the burden is on contestants to show testator did not have mind enough to know and comprehend, in a general way (1) the natural objects of his bounty (2) the nature and extent of his estate, and (3) the distribution he wished to make of it. While such statement appears in In re Estate of Fitzgerald, 219 Iowa 988, 996, 259 N.W. 455, In re Will of Johnson, 201 Iowa 687, 689, 207 N.W. 748, and perhaps some other decisions, it is unfortunate and misleading because it infers that in order to prevail, contestants must establish testator's incapacity in all these respects whereas proof of incapacity in any of them is sufficient. Further, the majority's statement overlooks the fact that testamentary capacity also involves ability to understand the nature of the instrument testator is executing. See In re Estate of Ring, 237 Iowa 953, 967, 22 N.W.2d 777, 784, and citations; 57 Am. Jur., Wills, section 64; 1 Page on Wills, Lifetime Ed., section 132, page 268.

The true rule, repeatedly recognized by us, is in substance that one has testamentary capacity if he has sufficient mentality to (1) understand the nature of the instrument he is executing (2) know the nature and extent of his property (3) remember the objects of his bounty, and (4) know the distribution he desires to make. Lack of any of these requirements results in testamentary incapacity. See Perkins v. Perkins, 116 Iowa 253, 260, 90 N.W. 55; Bishop v. Scharf, 214 Iowa 644, 653, 241 N.W. 3, and citations; In re Estate of Ring, supra. See also 57 Am. Jur., Wills, section 64, and, especially, 1 Page on Wills, Lifetime Ed., section 132, pages 268, 269, where it is said:

"He must have sufficient mind and memory to understand all of these facts; and a charge, in negative form, that capacity is lacking if testator is not able to know all of these facts, is erroneous, since he lacks capacity if he is unable to understand any one of them."

IV. I do not agree there is not the slightest evidence testator did not know the natural objects of his bounty. Insofar as the will provides for the wife it is not unnatural or unreasonable. But she was incurably insane and advanced in years. A sane man would know that in addition to the income probably only a small part of testator's estate of over $50,000 would be needed to support the wife during her lifetime, and upon her death the property would pass to her brother or her more remote heirs. The will makes no disposition of the property upon the wife's death.

As might have been anticipated, the wife predeceased testator and under the antilapse statute (section 633.16, Code, 1946) the wife's brother acquired the entire estate under this will. In re Estate of Conner, 240 Iowa 479, 491, 492, 36 N.W.2d 833, 840, 841, and citations. A next door neighbor testified she never knew this brother to visit the Meyers. However testator was often seen in the home of his older sister who housed and cared for him the last two years of his life when he was so hard to manage.

It is unnatural, unreasonable and unjust for this sizable estate to go under this will to the brother of the deceased wife to the exclusion of testator's own sister and the children of his two deceased sisters with whom he was on friendly terms and who at best were in modest circumstances. It is hard to believe Mr. Meyer understood the nature of the instrument he was executing. If he were sane he would be presumed to know of the antilapse statute and its effect on the bequest to his wife in the event she predeceased him. In re Estate of Finch, 239 Iowa 1069, 1084, 1085, 32 N.W.2d 819, 826, 3 A.L.R. 2d 1403, and citations.

I think these contestants are more natural objects of testator's bounty than is his wife's brother. There is substantial evidence testator lacked mind enough to know this. On January 31, 1943, over six months before the will was made, testator was unable to recognize two nieces, one of whom, Clara Totemeier, had then lived in New London about five years, and the other went to school with testator's wife and had been in their home many times. When he was told they were Mary's daughters, it was necessary to explain to him that Mary was his sister. I do not agree there is nothing in the record to show Mr. Meyer ever had known Clara Totemeier.

At the Thanksgiving dinner in 1943 testator was unable to identify the Totemeier adult children and when told who they were could not remember them for even a few minutes. Totemeiers' married daughter had lived in New London all her life except four years, had been in Mr. Meyer's home occasionally and had often seen him in his sister's home. The testimony as a whole would warrant the finding testator was mentally incapable of remembering the natural objects of his bounty.

V. Nor do I agree there is no evidence Mr. Meyer did not know the nature and extent of his estate. I think there is substantial testimony he was incapable of such knowledge as early as 1942 and grew progressively worse thereafter. Of course anyone will at times lose or misplace belongings. But here, as early as 1942, there is evidence testator was unable to remember from day to day what property he had. He was constantly under the false impression certificates of deposit had been lost or stolen and when the facts were explained to him was incapable of remembering them.

In 1942 a certificate of deposit testator insisted was lost was found by Mr. Cullen in Mr. Meyer's safe-deposit box. In 1943, presumably in the spring, testator claimed to the assessor he had lost money in his home and he thought someone had taken it. He reported to the assessor he had no moneys and credits although he then had several thousand dollars which he had reported in previous years. In May 1944, two nieces discovered a pasteboard box containing $2645 on a closet shelf in Mr. Meyer's home. The guardian reported this "money had obviously been hidden" by testator. In February 1946, workmen in the Meyer home discovered about $500 in a bookcase. In 1945 an auto mechanic found $3000 of securities under the seat of testator's car. About this time the will of testator's wife made in February 1934 was found, soiled and crumpled, in the back end of his car. It is a fair inference Mr. Meyer did not know he had any of the money or valuable papers found by others. This evidence together with other testimony as to testator's mental condition would warrant a finding he did not know the nature and extent of his estate.

Of course a mere scintilla of evidence is not enough to create a jury question in a will contest — or in any case. Substantial evidence of testamentary incapacity at the time of the will is necessary. And it is also sufficient. 57 Am. Jur., Wills, section 133. Where the record is such that reasonable minds may differ on the ultimate question in any case, including a will contest, the court should not direct a verdict. The jury are the triers of fact in a will contest as in other cases. See In re Estate of Ensminger, 230 Iowa 80, 81, 296 N.W. 814, 815, and citation.

Perhaps we have occasionally lost sight of these fundamental considerations. In the more recent decisions cited in Division I hereof we seem to have kept them in mind. From the majority opinion it appears we have again lost sight of them. I think this case should have been submitted to the jury and therefore I would reverse.

OLIVER, BLISS and HAYS, JJ., join in this dissent.