In Re Estate of Goldman

HOUSER, J.

This is an appeal from a judgment rendered in pursuance of a verdict by a jury m a contest of the will of Abe Goldman, deceased. Contestant is the son of the testator.

The contest of the will as originally filed presented both the issue of undue influence in the making of the will and that of unsoundness of mind of the testator. On the hearing of the matter, by order of court, the former issue was withdrawn from the consideration of the jury, and by an amendment, contestant was permitted to modify the other issue from that of general incompetency to that of a fixed delusion on the part of the testator, which at the time of the execution of the will operated directly upon its provisions.

Special issues were submitted to the jury which included, first, the question as to whether at the time or times when the testator made his will and the codicil thereto he was suffering from a specific insane delusion which affected the making of such will and codicil, respectively, and except for which neither the will nor the codicil would have been made; and, secondly, whether at such time or times the testator was suffering from such a complete mental degeneration as to denote utter mental incapacity to know and understand the nature and extent of his act. As to the

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questions which signified a specific insane delusion on the part of the testator, the answers given by the jury were in the affirmative; but as to the questions relating to the testator’s complete mental incapacity, the answers were in the negative. Judgment on the verdict having been rendered in favor of the contestant, the proponent of the will has appealed therefrom.

In effect the principal point relied upon by appellant is that the evidence was insufficient to justify the verdict.

Without attempting to set forth herein the testimony given by the several witnesses who testified at the hearing, it may suffice to state generally that at least six of such witnesses testified in substance that on many occasions, both precedent as well as subsequent to the making of both the will and the codicil thereto, the testator had made statements to the effect that he believed that the contestant would poison him or kill him; that the contestant desired the death of the testator in order that contestant might inherit the property of the testator; that it was for that reason that the testator would have nothing to do with the contestant, and that the testator, by his will, would leave the contestant very little, if any, of the testator’s property. No evidence was produced which showed the slightest foundation for such belief on the part of the testator. On the other hand, evidence was introduced from which the jury properly might have decided that the reason for the practical disinheritance of the son by the father was due to conditions and circumstances other than those which tended toward the establishing of an insane delusion of the testator which directly affected the provisions of the will and the codicil thereto, so far as the contestant was concerned.