In Re Groen's Estate

Mulroney, J.

(dissenting)- — I would hold the record presents a jury question, at least on the issue of undue influence, and would therefore dissent from the majority opinion. I do not feel the majority opinion presents a review of the testimony in the light most favorable to the contestants which I understand is what should be done when passing on the correctness of the ruling on the motion for directed verdict. See In re Estate of Eiker, 233 Iowa 315, 317, 6 N.W.2d 318, 320, where the first assignment of error questioned the correctness of the ruling on the motion to direct the verdict on the issue of undue influence and we said: “In deciding the issue presented by appellant’s first assignment of error, appellee [contestant] is entitled to have the testimony considered in the light most favorable to her.”

There is little in the record about John Groen’s early life, save that he came to this country from Germany when about eight years old and he lived all of his life around Buffalo Center. He was a bachelor and he- could not read and he could not Write, except that he could with some difficulty sign his name. The story of his life, so far as this record is concerned, really starts with 1942 when John Groen was about seventy-two years old. In the early part of that year he was living alone on a 10-acre tract. Many nieces and one nephew lived on farms in the same neighborhood. All of John Groen’s sisters and brothers were *649dead. John Groen stayed at home alone. He never went to shows, never went to any church, never had nor drove an automobile and took no interest in any activities, except the management of his two farms which were then rented, and it does not appear that he had any close friends.

Sometime in the winter of 1942 John Groen took sick and for a time some of the nieces brought meals to him and then in February he was moved to the home of his niece, Mrs. John (Anna) Honken. From February 1942 until he died ten years later, John Groen lived at the homes of his various nieces and one nephew who farmed in the Buffalo Center area, except for three or four visits totaling a few months at the home of Mrs. Dick (Alida) Groen in Rock Rapids. He was very sick when he arrived at Mrs. Honken’s home in February 1942. He w.as bedfast and under a doctor’s care, apparently with some heart ailment, and he remained in bed, with all meals served to him there, until the following May. The proponents’ testimony shows "that it was thought that John Groen would die and Alida and two of her children came to' Mrs. Honken’s home to see him. Mrs. Honken testified that when they came, “they said that they came to see him [John Groen] to talk to him about encouraging him to make out a will.” It is admitted Alida and her two sons, and the wife of one of them, spent about two and a half hours of their three-hour visit in the bedroom with John Groen and one of the sons later testified “he was a very sick man.” But the sons stated the talk was general “about crops and weather.” Mrs. Honken testified she was out of the sickroom several times while Alida was visiting with John Groen alone. She could hear a conversation in the room but whenever she went back into the room the conversation stopped and John Groen’s “face was flushed” and “he appeared very excited.”

Mrs. Honken testified that in May, John Groen had recovered to the extent that he could walk around with a cane although he was “somewhat crippled.” At first he continued to sleep a good deal but later he spent his time walking from one place to another in the yard and he ate his meals with the family. She said, when questioned as to his mental condition, that he was “more or less unconscious of what he was doing or had done just before” and that he was quite forgetful.

*650John Groen remained at Mrs. ITonken’s home until October 1942 when he went to live with his bachelor nephew Johnny Troff who owned and farmed an eighty adjoining John Groen’s eighty-acre farm. Johnny Troff was then in his late thirties and John Groen lived with him for a little over four years or until February 1947. They had no housekeeper and John Groen did no work on the Troff farm and no housework except that he occasionally dried the dishes. He could get around with a cane but he was very forgetful and he would ask a question and after it was answered ask the same question again. Johnny Troff took him to the barber and to the bank in Titonka to see Mr. Boyken, the banker, about every two weeks. He had to help him in and out of his car. John Groen gradually became such a care that Johnny Troff was afraid to leave him alone in the house. He was so forgetful that he would leave things on the stoAre or leave, the stove door open and fill the house with smoke while Johnny Troff was aAvay Avorking in the fields. Sometimes he would leave wet handkerchiefs on the stove to dry and forget he had placed them there, and once he fell and fractured his arm.

In February 1947 John Groen went to the farm home of another niece, Mrs. Fred Wubben, but he only stayed there a few weeks and he was then brought back to stay at the Honken home. He stayed at the Honken home until August 1948 when he went to the funeral of his nephew Dick in Rock Rapids. He stayed a few months with Alida on this occasion and when he returned he stayed at the Honken home until the September 1949 visit to Alida, when the will in qiiestion was executed.

Mrs. Honken and her husband and some of her children, and others who Adsited in the Honken home, described in much detail the change in John Groen, physically and mentally, during this second period in the Honken home — about February 1947 to September 1949.

Many witnesses testified as to the marked change and steady decline in John Groen’s mental and physical condition. Mrs. Honken testified: “He was getting more feeble. I noticed he was getting more forgetful. * * * For instance, a check or cheeks that he had in a certain place, and after he Avould get a check, he would forget that he had gotten it. He would receive a *651check and put it somewhere and then forget that he received it and that he had it.” She said his physical condition grew gradually worse and that he was not able to walk about by himself and it took two persons, one on each side to get him in and out of a ear. When asked about his mental condition during this period she replied: “Well, he didn’t trust himself to do anything, anything in the way of business at all.” She went on to explain that he would ask her to help him and she would read his mail to him and since he had difficulty in keeping track of his papers she would try to find them for him. She said he carried his money on his person in a salt sack or sugar sack and he placed it under his pillow at night and on occasions he would lose the sack or leave it in the bed and she would find it for him.

Mr. Honken testified-John Groen could not read and could not write but could sign his name with difficulty. The difficulty was a sort of palsy or shaking of his hand. He said he wore his clothes out where his hand would shake against his leg. When asked how John Groen occupied his time when in his home he replied: “Well, he would sit and count the rounds on his chair with his cane, and that is about all he would do; that and sleep; he spent a good deal of his time just sleeping.” Mr. Honken said he could not see or hear well and could not get around without someone helping him on each side. He said his memory was poor and “he never knew from one day to the next what day of the week it was.” Mr. Honken said that for the last four years before he died John Groen “couldn’t take care of his business affairs. He could not do it by himself. My wife helped him in those matters.” He too told of how John Groen handled his money and papers by keeping them in his billfold in the sugar sack. He said that during the last four years he had always gone to the elevators in Buffalo Center and Woden to get John Groen’s cheeks for him and during the last three years of John Groen’s life he had not gone to the bank at all. Instead they would call the banker to come out and pick up his cheeks. He always paid John Groen’s taxes and John Groen would either give him .the money or reimburse him.

All of the above evidence was corroborated in most all particulars by other witnesses. The Honken children, Clyde, Sadie *652and Ernest, told the same story, and Mrs. Fred Wubben, another niece, gave similar evidence. She illustrated his forgetfulness by saying he would ask how old some person was and after it was answered ask the same question over again. As she said: “He would ask a question and it would be answered and then in a few minutes he would ask the same question right over again.” She said he spent the few weeks he was in her home in 1947 just sitting in a chair sleeping or sometimes listening to the radio if someone turned it on. “He did not operate it at all himself.” Mostly he just listened if there were others in the room talking.

Robert Fisher who lived about 160 rods from the Honken •home and exchanged work with Mr. Honken said he was in the Honken home about every week and frequently saw John Groen when he was living there. He saw John Groen outside the Hon-ken home two or three times during 1948 but he said: “Later on he began to fail more and got quite bad and got to where he couldn’t get around unless he had help, with usually a man on each side of him. * * * His toilet and table manners were very poor. He seemed to trust no one in particular. I remember when he was losing his money as has been testified to here and that John Honken insisted that he should take it to the bank and John Groen didn’t want to.” He said John Groen could not make it to the kitchen without “a man on each side of him” and Mrs. Honken gave him his meals on a tray. He said John Groen always seemed very fond of Mrs. Honken and “if he needed a little help with anything she always seemed to give it to him.”

George Roth, a farmer in the area of the Honken home, related a conversation he had with John Groen on the porch of the Honken home in 1947 or 1948 when John Groen told him he had his will all fixed and Johnny Troff was to get the eighty that he owned and the others were to get the quarter section. A. R. Guernsey who was a neighbor of Johnny Troff’s gave similar testimony saying he saw John Groen often when he was living with Johnny Troff and “he said to me several times that Johnny Troff was to get his eighty that laid beside Johnny Troff’s eighty, and that he was leaving it to him so as to make *653Johnny Troff a quarter section.” He too told of how it took two people to help John Groen get around.

Mr. William Boyken of the Titonka Savings Bank testified as to his dealings with John Groen during the twenty years that he was a customer of the bank. He said he came to the bank two or three times a year up to August 1949, after which he never came to the bank. He stated: “His physical condition from the year 1942 up to the time of his death was not good. In earlier years of that period I think he walked some with the use of a cane or two canes. In the later years, he had to have support of a man or two men, one on each side of him. He never was too alert but his mental condition very gradually got worse. From 1942 progressing to the time of his death. From my acquaintance with him and business transactions with him, 1 would say he was not educated, but uneducated.” Mr. Boyken went on to say John Groen could not read and that he had a hard time writing his name. He stated: “He would have to sit by a table and have support and he would never use a pen but his pencil, and he was very unsteady and it took him quite awhile to sort of find himself and it would take him a long time just to sign his name. In later years his hand seemed to tremble and shake like a person with the palsy. I have observed him scratching or rubbing his hands on his overalls. He would be sitting in a chair and rubbing his hands on his overalls above the knee, and have his overalls worn out on that spot where he scratched his hands on them. In the past years and when he came to the bank I never waited on him at the bank counter because of his physical condition, and because it was so hard for him to get around and stand. He couldn’t stand, and so if he came in we had him sit in a chair in the middle of the room or in the bank room in either one of those two rooms.”

Mr. Boyken explained the nature of the business he did for John Groen, which consisted of depositing the checks he brought in on time deposits. These certificates of deposits began building up since 1932 and at the time of his death amounted to some $20,000. Sometimes John Groen would take part of the check deposits in cash and the balance in time deposits. John Groen had no cheeking account until November 28, 1951, or the last year of his life. Mr. Boyken or his son usually made out *654John Groen’s income-tax returns. Mr. Boyken testified: “In 1942 at his request, I made a Will for him. He was at the Honken home where he was staying, and I think that was the day before this Will was dated, and John Groen was there then in the bedroom, and I saw him there and he asked me if I could draw a Will for him. He was in bed at the time. I told him that I could. That I could come back sometime later and bring some material to write on and to draw it up for him and he asked me to do so. Later I went back and wrote the Will for him as he asked me to do.”

This 1942 will gave the eighty acres to Johnny Troff and made disposition of the balance to his nieces and nephews including Alida’s children; and right here it would be well to mention that Anna Honken testified that she saw this will in 1948 or 1949, she could not remember positively which year. She said: “Uncle John had taken some papers from his pocket in a jacket that he had been wearing and this [will] was in those papers in a sealed envelope, and he opened it at that time and asked me what it was.” She told him it was his will and he put it back in the envelope and put it in his pocket and it was found in his jacket pocket after his death and turned over to Mr. Boyken, the named executor.

In the latter part of July 1949 Mrs. Honken received a letter from Alida Groen in Rock Rapids in which she said: “Say is Uncle John intending to come and stay with me for a little while then please let me know ahead as then I will have to tell Minnie to get a different bording place as she has that bedroom and yous know a person should tell them a little ahead of time as bording places are hard to get will you please write and tell me would like to know.”

Presumably Mrs. Honken wrote, for in September 1949 John Groen was taken to Alida’s home in Rock Rapids by Mr. and Mrs. Fred Wubben in their car. Two of Alida’s children and their wives brought John Groen back to Winnebago County and to the Wubben home about December 5, 1949 — about ten days after the date of the will in question. Joseph Wubben, a son of Mr. and Mrs. Fred Wubben, testified that at the supper table the night John Groen, returned he said “that the only thing *655they wanted him there [at Roek Rapids] for was his money”, and he said “he wanted to come home.”

Clyde Honken, a son of Mr. and Mrs. John Honken, testified as to statements made by John Groen shortly after his return when he said “if they didn’t bring him back he would find a way to get back himself.” Clyde’s sister, Sadie, heard a similar statement and his brother Ernest testified John Groen said shortly after he returned from Roek Rapids “that he couldn’t stay there any longer, that they were trying to rob him.” Fred Stratman, the husband of John Groen’s niece, testified: “When John Groen came back from Roek Rapids in 1949 in December he seemed excited. I wasn’t there when he first got back. # * * It was probably a few days before I got to Wubben’s to see him. * * * He was excited, he said, referring to the folks at Rock Rapids, that they were trying to rob him. He said that to me at our place. I think he came back in December 1949 and this was in January, about a month later, maybe a little over a month. That was after he came to our place, about a month later, maybe a little over a month.”

After living for a few months at the Wubben and Stratman homes, John Groen arrived back at the Honken home in March 1950 where he lived until he went to the hospital the week before he died, or November 1952. His condition grew worse. Many times he lost all control of bodily functions. He never went to the bank but Mr. Boyken would call and pick up his check deposits. The Honkens would call Mr. Boyken to come out and they became apprehensive about the large amount of cash he had and insisted over his protests that he deposit the cash in the bank. They picked up his checks at the elevators and paid his taxes for him. The checking account which he opened in November 1951, a year before his death, seems to be the first checking account he ever had. It was not very active. It shows five deposits and six cheeks. It is admitted the checks were filled in by other persons and the photographs of the checks shows the laborious, almost unreadable, signature of John Groen.

Many witnesses testified that John Groen was worse mentally and physically immediately after his return from the 1949 visit to Alida’s. Mrs. Fred Stratman, at whose home John Groen lived during the early months of 1950, said: “While he was there *656at our house his physical condition was not at all good. He spent a great deal of time sleeping. He would be in bed early and get up late and then would sleep most of the time after he did get up. Q. And did he seem to have any interests in anything in particular as you observed it? A. Just momentarily some times, that is he would appear interested at first but his interest wouldn’t continue at all. It was only for a fleeting moment. He would ask about something and when he was answered it apparently wouldn’t register in his mind and his interest would only be very short. His memory seemed to be getting worse continually and it was very poor.”

Mr. Fred Stratman gave much the same testimony. He said: “You couldn’t talk and visit with him as he got things mixed up and seemed to be unable to carry on a conversation. He would start to talk for just a little and then got things mixed up so that you couldn’t talk and visit with him. He usually slept until noon and then he would get up and be in his chair for the rest of the day.”

After staying at Stratman’s about three months he went back to the Honken home. Ernest Honken testified: “When he first lived at our house in the year 1947 he was able to get about the house and to the bathroom by himself. When he came there in early 1950 when he first came back he could sometimes make it by himself and sometimes he couldn’t but he gradually got worse, so after a while he couldn’t at all. His eyesight was poor. I never saw him read. I never saw him write. When he was up during the day he spent his time sleeping a good deal of the time and then he would be sitting in his chair when not sleeping and take his cane and mark off the linoleum. Take his cane and point off from one angle to another the marks and figures in the linoleum and kind of trace those nearest him with his cane. That was about the limit of his activity. I am now referring to the time after he came back from the Rock Rapids visit.”

The relatives stayed with John Groen when he was in the hospital, and Mrs. Fred Stratman who stayed with him all night for the last six nights before he passed away said “he continually called for Anna [Honken].” She said he was not in a coma unless possibly the last night. Alida Groen died in Rock Rapids *657the day before John Groen died, and about a week after John Groen died, Orvel and Ben Groen (children of Alida) and their wives drove to the Honken home and showed Mrs. Honken a copy of the 1949 will in question. She testified: “They said * * * their mother Alida Groen had then died * # * and they said they had opened up their mother’s box and found this Will among her papers. * * * When they said that my husband and my father-in-law were there. That is the first that I knew of any such purported Will.”

Ben and Orvel and their wives had dinner at the Stratmans on that day before they returned to Rock Rapids. Fred Stratman testified while at their house Ben said: “ When we went to the bank and got mother’s box and were going through the papers in her box we found this.’ And then he handed me an envelope with a paper in it and I read it and then handed it to my wife and he said when he handed it to me that that was a copy of it, of the paper [1949 will] he said they found in their mother’s bank box.”

The story of the drawing of this 19491 will, necessarily related by proponents’ witnesses, is subject to many unfavorable inferences. The jury could believe Mr. O. J. Kline, the bank representative, knew Alida, the sole beneficiary of the 1949 will, rather intimately. According to him one of his duties at the bank consisted of “the contacting of accounts and prospective customers * # * [and] naturally I tried to get her [Alida] as an account for the bank.” Incidentally he was not too successful for she did not become a customer of the bank until about a year before she died.

Mr. Kline testified that one day he was going past Alida’s home so he “casually” dropped in with the thought of getting her as a bank customer in mind. His story continues. Alida was just having a cup of tea so she invited him into the kitchen and on the way introduced him to “Uncle John” who was sitting in the living room. They had a general conversation during the course of which Alida said: “ T am going to have to make my Will out, where can I get that done f ” He told her their vice-president, Mr. Crawford, would be glad to come out and take care of it and then John Groen, who Avas still in the living room, *658said: “ T want to make my Will’ ” and he told him also their Mr. Crawford could come out and take care of the matter. About three weeks later (on November 25, 1949) he received a telephone call from Alida in which she asked: “ ‘Can you and Mr. Crawford come to the house this afternoon, Uncle John would like to see you f ” He' said they could, and that afternoon he and Mr. Crawford went to Alida’s home. He did not see Alida but when he knocked he heard her call from somewhere in the house for them to come in. He and Mr. Crawford went back to the kitchen where John Groen was seated at the kitchen table. He introduced Mr. Crawford to John Groen as one “who can help you with your Will if you so desire”, and John Groen said he wanted to make out a will and said “he wanted to leave his entire estate to Alida Groen of Eock Eapids, Iowa, his sister-in-law * * * the lady who lived there in that house.” Mr. Crawford took some notes and told John Groen the general language of a will and said it would require' two witnesses but he and Mr. Kline could act as such witnesses if he desired. Mr. Groen said “he would like to have us as witnesses”, so they left and went to the bank where Mr. Crawford typed the will and they returned in about twenty or thirty minutes. This time “we knocked and no one answered, and I opened the door, I was familiar with the house there, and knew that we were expected * * * they were expecting us again of course.” They went back to the kitchen where John Groen was seated at the kitchen table in the same place. Mr. Crawford read the will to him and John Groen then signed the will. “It did not take John Groen very long to sign his name. " * * Mr. Groen was not wearing his glasses and when he was engaged in [signing] he stuck the pen through the paper, tore it a little, and he said that he was sorry, and wanted to know if that hurt it or spoiled it, and-‘Mr. Crawford told him that didn’t spoil it, that he would just smooth it down, and he did, and then Mr. Groen completed signing it.” After he and Crawford signed as witnesses Mr. Crawford offered the will to Mr. Groen, but Mr. Groen said: “ ‘I don’t want it, you take it’ ”, and he and Mr. Crawford left and went back to the bank where he saw Mr. Crawford place it in the bank vault.

*659Mr. Kline testified that lie had related all of the talk that took place on the afternoon the will was executed. Mr. Crawford could remember quite a little more conversation with respect to the executor or executrix to be named and about the bond and John Groen asking how much he owed him and his payment of $3.00 for drawing the will. But when he was through with his story on direct examination he said he could not recall any other conversation. Later on cross-examination he said he did not ask John Groen if he had a wife or children. He said: “I had been told by someone, and I rather think it was Mr. Kline”, that he was a bachelor. He testified he had talked with Kline some little time before November 25, the day Alida called for them to come out, and Kline at that time said “we were supposed to go there some day and draw a Will for Uncle John Groen, Mrs. Alida Groen’s brother-in-law, that he was a bachelor.” He did not ask John Groen if he had any brothers or sisters or nephews or nieces. He said John Groen was a complete stranger to him and that he had never seen him before. But he said he did not know John Groen was not a resident of Rock Rapids at the time he drew the will. He said: “I did not ask him if he had ever made a Will before, but I put in that clause and told him it would revoke any former Will, if there had been any, but I didn’t ask him if he had ever made any former will.” He said he did not know Alida Groen but he thought he had seen her once or twice before the date he drew this will. He said this was the'first time in his thirty-five years experience of drawing wills for people that he ever drew a will for a complete stranger and then had the signer tell him to keep the will.

Mr. Crawford said he put the will in the bank vault and “gave the matter no thought until Alida Groen died.” He said John Groen never was “in any way or to any extent a customer of the bank by mail or anything else”, and never inside the bank building. After Alida’s death her children, Carl and George, came to the bank to get her lockbox and Mr. Crawford testified he took the box to Alida’s home where the family was assembled. He read Alida’s will to them and then told the family “that Alida Groen had been named as executrix of that will of John Groen and that due to the fact she had died someone would have to be appointed to act in-her place.” He was not sure how *660he had heard that John Groen had died over in Buffalo Center, the day after Alida died. He thought someone in the bank— just who, he could not remember — had said something to the effect that “John Groen had passed away.” He testified he did not tell the children their mother was sole beneficiary of John Groen’s will, but without such knowledge the children went ahead and selected Ben and Orvel to act as administrators of John Groen’s estate and pursuant to their directions he went to the bank and got John Groen’s will and turned it over to the bank’s attorney.

I. The foregoing is my review of the evidence in the light most favorable to the contestants. I see nothing in the record that would support the statement that “by his industry, thrift and good judgment he acquired a very comfortable competence.” We do not know how he “acquired” his farms. It may be he inherited them. He had the thrift of a bachelor-recluse and this record presents little about his exercising any business judgment. The statements in the majority opinion that he tended to his “business affairs” and that he “attended to the collection of his crop checks at the elevators himself” and that he “usually paid his taxes personally in cash or by checks” are certainly not true of the last four or five years of his life. This man did business out of a sugar sack. He had no checking account until the last year of his life and he only wrote six checks on that. He carried around large amounts of cash. When Alida’s oldest son borrowed $1000 from John Groen in 1946 on a 6% note, John, who was then at Johnny Troff’s place, gave him the $1000 in $20 bills which he took from a small notebook in his pocket. The majority opinion assumes John Groen paid for his keep in his nieces’ homes and Johnny Troff’s home during the last ten years of his life. This is because of the evidence of one $600 check to the Honkens. The record is silent as to whether he paid more.

These are the legitimate inferences which I think can be drawn from the foregoing review of the evidence in this case. There certainly could be the finding that John Groen was a fit subject for undue influence at the time the 1949 will was executed. He was then seventy-nine years of age.' He was unable to read. He was unable to write except perhaps to write his *661name. He was in a weakened mental condition. He could not handle his business. He was unable to retain anything in his mind for more than a few minutes. He was completely helpless physically and at the time the will was made, entirely dependent upon the sole beneficiary of the will, Alida Groen. He was completely unable, both physically and mentally, to make his own arrangements for making the will. The arrangements had to be made for him by the sole beneficiary. The sole beneficiary had early shown some disposition to influence him in that there was evidence from which the jury could find she once before attempted to get him to make a will.

The will was drawn up by entire strangers to John Groen, but one of the parties, the jury could find, was an old friend of the sole beneficiary. The will is most unjust and unnatural. It cut out all of his blood relatives and especially those in the Buffalo Center area who had cared for him in their homes during the last ten years of his life. There is a complete absence in the record of any reason for disinheriting these relatives. He told people outside the family, neighbors and Mr. Boyken, the banker, that they were good to him and when he lay dying he was calling for Anna Honken. There is no evidence that he ever displayed any great affection for Alida. On the contrary, the evidence is that after returning from his visit with her he was excited and glad to get back home and he stated “they” wanted his money and wanted to rob him. At the time the will was made there was no discussion as to the testator’s blood relatives, as to whether he had a wife, children, or brothers or sisters, or nieces or nephews. The banker who drew the will, who was formerly county treasurer of Lyon County said he thought this 79-year-old man who was a complete stranger to him, and who owned farms in Winnebago and Hancock Counties, was a resident of Rock Rapids — a town of 3000 population. He did not ask him if he had ever executed a will. The jury could find this Will was found in the lockbox of the sole beneficiary. Or under the proponents’ evidence they could find the almost equally suspicious fact that John Groen never had possession of the will from the moment he signed it and it was found in the custody of a complete stranger. The jury could find that apparently John Groen had no recollection that he had executed the 1949 *662will, or that the instrument he signed in Alida's kitchen was a will. On the contrary, he retained his 1942 will and it was found in his jacket pocket after his death. He never spoke of the 1949 will and Alida, who knew of the will, never spoke of it to any of her relatives and not even to her own children.

All of these inferences would support a finding that undue influence was exerted in the making of the 1949 will.

II. How is undue influence established in a will contest easel We have often held it need not be established by direct evidence.

In In re Estate of Telsrow, 237 Iowa 672, 677, 22 N.W.2d 792, 796, we said: “Undue influence in cases of this kind may be, and usually is, proven by circumstantial evidence. Direct proof is seldom available.” (Citing many Iowa cases)

In In re Estate of Eiker, 233 Iowa 315, 317, 6 N.W.2d 318, 320, we said: “Undue influence may be established by circumstantial evidence.”

In In re Will of Busick, 191 Iowa 524, 530, 182 N.W. 815, 818, we said: “* * * but undue influence may be proved circumstantially ; indeed, it is seldom capable of other proof.”

In In re Estate of Rogers, 242 Iowa 627, 635, 47 N.W.2d 818, 823, we said: “On the other hand, it is well settled that the evidence of undue influence need not be direct.”

III. It has been said that four elements should be established in order to raise a jury question on the issue of undue influence, and they are: (1) a person unquestionably subject to undue influence (2) opportunity to exercise such influence (3) a disposition to influence unduly for the purpose of procuring an improper favor, and (4) the result clearly appearing to be the effect of the undue influence. See In re Estate of Ankeny, 238 Iowa 754, 28 N.W.2d 414; 30 Iowa Law Review, 321, 323. It cannot be seriously argued that there was not sufficient proof to establish the first, second and fourth elements. And there is more proof here to establish the third than is usually present in cases of this-kind. Not only do we have direct testimony of Alida’s statement on an earlier occasion that she intended to get him to draw a will but we have testimony of her arrangement for strangers to draw the will. We have undisputed testimony that John Groen never for a single instant *663had possession of this will, and other evidence that the will was found in the lockbox of the sole beneficiary. And add to that the testimony of the statements made by John Groen to many witnesses shortly after he returned home after making this purported will, that his Rock Rapids relatives had tried to rob him.

The jury would not have to believe every word of the bankers’ testimony. Many of the circumstances surrounding the drawing of this will were sufficient to arouse suspicion.

Under the evidence most favorable to the contestants we have a helpless, feeble, mentally weak old man invited to the home of one who had the wish and the desire to get him to make a will. ¥e have this man, at the time dependent upon Alida for everything, executing an unnatural will prepared by strangers in which she is the sole beneficiary. ■ The jury could well believe she set the stage and exerted the influence that resulted in this will which never reached John Groen’s possession, but was found in the lockbox of the sole beneficiary.

It would unduly extend this opinion to discuss our prior decisions in detail but this case is much like the Telsrow case, supra, Shaw v. Duro, 234 Iowa 778, 14 N.W.2d 241, and In re Will of Soderland, 239 Iowa 569, 30 N.W.2d 128, in all of which we held, on no stronger evidence than is present in this case, that the issue of undue influence was for the jury.

I -would reverse.

Hays and Larson, JJ., join .in this dissent.