Being unable to agree with the majority opinion, I respectfully dissent. I feel that such opinion is based upon a misconception of the effect of the evidence, resulting in an unwarranted conclusion, the net effect of which is to give to a paramour of the testator practically the whole of his property to the exclusion of the natural subjects of his bounty. Under the record no such result should be permitted.
The case is a will contest and the ground set forth is that of undue influence claimed to have been exercised over the testator by the principal beneficiary. There is but one question *Page 151 in the case: Was there sufficient evidence shown on behalf of the contestants to entitle them to have the case submitted to the jury? The trial court answered in the negative, directed a verdict against them, and this court in the majority opinion has set its seal of approval upon such action.
Many cases have come before this and other courts in which such a question has been considered. It usually arises where questions are raised involving contracts, conveyances, and testamentary devices. The matter of its existence, its scope, extent, and effect has frequently been passed upon by this court. In the first instance, the trial court decides whether the party claiming undue influence has produced sufficient evidence to warrant the court in submitting the issue to the jury. If so, then it becomes the province of the jury to pass upon its sufficiency to sustain the claim made. Like most disputed questions, the presence or absence of undue influence may be shown by either direct or circumstantial evidence.
The term "influence" has been often dealt with by this and other courts. The yardstick by which it is judged has no set formula or standard. It has been held that in the making of a will undue influence is something that has the effect of subjecting the testator's will to that of the person exercising it. Also, influence to be undue so as to invalidate a will must destroy the free agency of the testator. In re Will of Richardson, 199 Iowa 1320, 202 N.W. 114; Hann v. Hann, 202 Iowa 807, 211 N.W. 495; Cookman v. Bateman, 210 Iowa 503, 231 N.W. 301; Worth v. Pierson, 208 Iowa 353, 223 N.W. 752; In re Estate of Brooks, 229 Iowa 485, 294 N.W. 735; Shaw v. Duro, 234 Iowa 778,14 N.W.2d 241; In re Estate of Telsrow, 237 Iowa 672,22 N.W.2d 792. I claim that the record in this case comes within the rules as set forth in such cases.
In the rather recent case of Shaw v. Duro, supra, 234 Iowa 778, 783, 14 N.W.2d 241, 244, there was involved the question of undue influence in the making of a will. Hale, J., speaking for the court, said:
"This court has frequently held that in cases of this kind we may take into account the physical condition and strength of mind of a person whose will is under consideration." Citing *Page 152 In re Estate of Wiltsey, 135 Iowa 430, 109 N.W. 776; In re Estate of Eiker, 233 Iowa 315, 6 N.W.2d 318; Stephenson v. Stephenson,62 Iowa 163, 17 N.W. 456.
In the Duro case it is further held that in such a case undue influence may be shown by circumstantial evidence, and further, that the main question in any case of this kind is one of fact. Also, that inequitable and unjust provisions of a will in a case where undue influence is claimed may properly be taken into consideration. See Cash v. Dennis, 159 Iowa 18, 139 N.W. 920. On this last, see In re Estate of Townsend, 122 Iowa 246, 97 N.W. 1108; Zinkula v. Zinkula, 171 Iowa 287, 154 N.W. 158; Pirkl v. Ellenberger, 179 Iowa 1122, 162 N.W. 791; Busick v. Busick,191 Iowa 524, 182 N.W. 815; In re Estate of Rogers, 229 Iowa 781, 295 N.W. 103; In re Will of Johnson, 201 Iowa 687, 207 N.W. 748; Perkins v. Perkins, 116 Iowa 253, 90 N.W. 55; Parker v. Lambertz,128 Iowa 496, 104 N.W. 452.
The appellants, all children of the testator, claim that the will was the product of an undue influence exercised over the testator by Katherine Melinski. To sustain their claim they presented to the court facts and circumstances from which I think that a jury could properly find that such influence existed — not for a limited period of a few years but for a period of nearly forty years. Their specific claim is that, added to the illicit and unlawful relationship of the testator and Katherine, there were other facts and circumstances from which it might be fairly inferred that such influence existed and that the will was its product.
At the conclusion of contestants' case the trial court, upon motion of the proponent (appellee), directed a verdict against contestants. As bearing on the record and the situation then existing, I quote two statements made by the trial court just before directing the verdict:
"All I am interested in is whether the Court has ever held that the mere fact of illicit relations raises any presumption of undue influence."
Also:
"There is a long line of testimony here as to illicit relations *Page 153 existing between Frank Shelangoski and Katherine Melinski covering a period of nearly forty years. That testimony is relevant on the question of undue influence but of itself is not sufficient to justify a jury in finding there was undue influence. More is required." (Italics supplied.)
While the majority opinion rather minimizes the evidence of such illicit relations, yet the record is replete with facts and circumstances from which no other conclusion is possible. The record abundantly shows that over this long period of time there were carried on almost openly illicit relations between testator and the principal beneficiary. During practically all of this time the testator had a wife, the mother of his children, who kept the home and worked and labored as a housewife and only quitted it when testator brought into that home his paramour of at least a third of a century.
So I feel that we can start with the premise that testator and Katherine Melinski indulged in illicit relations up to the time the will was drawn on October 9, 1943.
I think it well at this point to call attention to certain events and dates which to me are highly significant. Frank Shelangoski married Katie Boroski about forty years prior to his death on January 19, 1944. As soon as the children became of school age they were placed in the home of Katherine Melinski, where they were kept nearly all of the time until their schooling was finished. The Shelangoskis lived together until about the middle of 1937. Shortly prior thereto Katherine Melinski came to the testator's home and following this event the wife left, never to return, and from that time on was supported by the appellants herein. She died October 31, 1939. Katherine continued to live with testator. Testator became seriously ill in October 1943. A physician was called on October 6, 1943; an examination revealed that the testator was a very sick man, with no hope of recovery, being in the last stages of pernicious anemia. October 9, 1943, Katherine went to Washington and some hours thereafter Attorney Kehoe came and prepared the will in question. The testator was in his bedroom, confined to his bed. Katherine was in the bedroom a part of the time Kehoe was there; a daughter of testator was in the house but was not invited *Page 154 to the bedroom. On January 10, 1944, testator and Katherine were married. During the ceremony the testator reclined in a chair. Testator died nine days later.
The will gave to each child $1. Substantially all of his estate of approximately $7,500 was given to appellee.
It seems to me that the circumstances surrounding the coming into the home of Katherine Melinski, the departure therefrom of testator's wife, the sudden illness of testator, the trip to Washington by Katherine a few hours later, the coming to the farm of Attorney Kehoe, the making of the will, and the marriage of testator and Katherine shortly thereafter, all are circumstances quite significant as bearing not only on the relationship of the parties but as indicating the moving force was Katherine Melinski.
I think there is ample evidence in the record from which a jury might infer, by reason of the illicit relations existing between testator and Katherine Melinski over a period of almost forty years, and the circumstances under which such relations were carried on, added to other facts appearing in the record, that such claimed undue influence existed.
I find no Iowa case which holds that illicit relations between a testator and the principal beneficiary is sufficient in itself to sustain a finding that undue influence existed to such an extent as to invalidate an instrument such as a will. To sustain appellee's claim in that respect they cite the case of In re Estate of Lathrop, 190 Iowa 684, 180 N.W. 737. In that case it was sought to set aside the will of Gladys M. Lathrop on the grounds that the principal beneficiary had indulged in illicit relations with the testatrix and that the will resulted therefrom. Various letters were introduced which it was claimed established such illicit relations. The trial court denied the claim and this court affirmed such action. In brief, the sum total of the finding of this court was that the facts failed to show that such illicit relations existed. This decision certainly does not lay down any rule which can have application to the facts as shown by the record in this case. The Lathrop case is not analogous to the present case. The illicit relationship of the testator and Katherine Melinski being shown, I think that *Page 155 such fact alone must be supported by other facts and circumstances to justify a court in submitting the issue of undue influence to the jury. Before calling attention to such other facts and circumstances I desire to refer to some cases from other jurisdictions upon the question of the effect of illicit relations in the making of wills where undue influence is claimed. See Waters v. Reed, 129 Mich. 131, 88 N.W. 394; Snyder v. Erwin, 229 Pa. 644, 79 A. 124, 140 Am. St. Rep. 737; In re Phillips Estate, 244 Pa. 35, 90 A. 457; Boyd v. Boyd, 66 Pa. 283; Smith v. Henline, 174 Ill. 184, 51 N.E. 227; Lamborn v. Kirkpatrick, 97 Colo. 421, 50 P.2d 542.
In the case of Waters v. Reed, supra, there was involved the probate of a will where it was claimed that the same was procured by undue influence arising out of unlawful and illicit relations between the testator and the principal beneficiary, a paramour of the testator. In that case the testator was debilitated in health and in making the will devised the bulk thereof to his paramour to the exclusion of those of his own blood. The court held that whether the illicit relations, coupled with the other facts and circumstances, constituted undue influence was a fact question.
In the case of Snyder v. Erwin, supra, 229 Pa. 644, 646, 79 A. 124, the court had for consideration the matter of illicit relations as bearing on undue influence in a testamentary device. There was evidence of meretricious relations between the testator and a married woman. The testator was somewhat enfeebled and went to live with his paramour. His will gave his daughter a trifling sum of money and the rest of his estate to the paramour. The jury found in favor of the contestant. In affirming the trial court, the Pennsylvania court stated:
"It clearly appears that the unlawful relation thus established began several years before; that it existed at the making of the will, and that it continued thereafter. This fact, taken in connection with the further fact that the will gives the entire estate to the proponent, to the exclusion of an only daughter against whom no other grievance existed than that she had declined to receive into her home the woman she believed to be her father's paramour, was evidence of an undue *Page 156 influence exerted by the proponent affecting the dispositions of the will, and sufficient in itself to carry the case to the jury."
I will quote briefly from the case of Smith v. Henline, supra,174 Ill. 184, 196, 51 N.E. 227, 231, where the claim was made that the will was the product of undue influence exercised over testator by a mistress:
"The existence of an illicit relation between a deceased testator and his mistress will not give rise to a presumption of undue influence as a matter of law, but undue influence is more readily inferred in case of a will made in favor of a mistress than in the case of a will in favor of a wife. The existence of the relation is a circumstance to be considered by the jury along with other facts in the case. * * * The jury have a right to consider the fact of the unlawful relationship where there is proof, as there is in the case at bar, tending to show constraint and interference, impaired mental capacity, loss of will power, and sickness or disease at the time of the making of the will." Citing case of Saxton v. Krumm, 107 Md. 393, 68 A. 1056, 17 L.R.A., N.S., 477, 126 Am. St. Rep. 393.
The Colorado Supreme Court somewhat recently passed upon such question, stating that in so doing it was required to choose between two rules. In an earlier case, Taylor v. Taylor,79 Colo. 487, 490, 247 P. 174, 176, involving a deed, it had held "the mistress of a grantor has the burden of proving that a conveyance to her was uninfluenced by that relationship."
In the more recent case, Lamborn v. Kirkpatrick, supra,97 Colo. 421, 426, 50 P.2d 542, 544, a will contest, that court said:
"In so holding, we thus deliberately chose one of two distinct lines of authority, and the question now is whether the same principle applies in cases of wills. * * * It is true that some courts, when considering instances of alleged undue influence, draw a distinction between transactions inter vivos and testamentary dispositions. There seems to us no sound reason for holding one way as to the former and another way as to the latter. We deem it proper to attach to illicit cohabitation the same effect where undue influence is charged to have brought about the execution of a will as where a case involves the *Page 157 execution of a deed. The moral basis * * * is as strong in one case as in the other. The unlawful intimacy * * * usually assumes a clandestine form and, after the testator's death, would almost invariably render such undue influence as results therefrom incapable of proof except by the aid of the presumption which the instruction in question undertakes to recognize." Citing Snyder v. Erwin, supra, 229 Pa. 644, 79 A. 124, 140 Am. St. Rep. 737.
This court has already squarely held that: "* * * influence obtained by immoral conduct and adulterous relations is regarded in the law as undue influence, and cannot be exercised to the advantage of the person possessing it, and when such relations exist, the burden is upon the one claiming under a conveyance executed by the other party to the unlawful relations to show that it was not procured by undue influence. The exercise ofunlawful influence will be presumed when the parties to a deed live in adulterous relations in the absence of proof of a lawful consideration." (Italics supplied.) Hanna v. Wilcox, 53 Iowa 547, 549, 5 N.W. 717, 718, citing Leighton v. Orr, 44 Iowa 679.
It is true these were cases involving deeds but I am unable to see any distinction between a deed without consideration and a will when the validity of the instrument is attacked for alleged undue influence of the beneficiary in procuring its execution. Each is a mechanism for consummating a gift to a beneficiary. If a gift is made, the use of undue influence growing out of the illicit relationship should be presumed in either case.
In Leighton v. Orr, supra, 44 Iowa 679, 689, we said:
"Influence obtained by the use of lawful means by a wife or child is eminently right and proper, if exercised with proper and honest motives. But the influence obtained by the use of unlawful means, immoral and indecent conduct, is undue influence, and no one should be permitted to derive benefit or advantage therefrom."
It may be conceded that many courts have refused, in will contests, to indulge the presumption of undue influence arising from illicit relations which they so readily apply when the *Page 158 validity of a deed is questioned. It may be that is the majority rule; if so, I would take my stand with the minority when and if we have to make a pronouncement on the subject.
There can be no doubt as to the long-continued relation existing between Shelangoski and Katherine Melinski. It was almost openly and brazenly flaunted in the very face of the children of Shelangoski and his wife and the public. For years, on many occasions, they occupied the same bedroom in the Melinski apartment. They were seen there by his children. When seen there by his children, the children were admonished to "go to their own room" and to say nothing about what they had seen. There was the trip in which they registered at a hotel as Mr. and Mrs. Shelangoski; they were seen frequently in the company of each other; the mother of his children remained at home while Shelangoski frequently was seen with Katherine Melinski, either at her home or in public places.
In addition to the evidence as to illicit relations there are in the record other facts and circumstances which bear upon the question of undue influence. Katherine sought to turn the father against his children, on one occasion referring to one of the girls as a "snake in the grass." She complained to decedent about the girls and their conduct. That she succeeded in that purpose might be readily inferred from the fact that for all practical purposes his will disinherited them.
Bertha Kupka, a daughter, and one of the appellants herein, testified that on one occasion Katherine Melinski struck her with a shoe. She further testified that Katherine on various occasions complained to testator about the girls. I quote:
"Q. Did you hear Katherine say anything to your father about the conduct of yourself and your sisters at any time while you were staying at her home? A. Yes, oftentimes I had heard, she called us liars and sneaks to him."
Irene Glider testified that she stayed in the apartment about twelve years; that Katherine told her to say nothing about how things were going on. She further stated that "Katherine told lies on us when father [testator] would come there."
Martha Johnston, an appellant, testified that her father *Page 159 brought her to the Melinski home in Washington when she was seven years old and that when she was seven years old and that when she left she was about twenty-three years old. She testified that while she and a sister were there her father frequently stayed overnight, and the girls were cautioned later that was not to be talked about outside; that it was "just one of those things" and not to say anything to anyone; that it "wasn't anyone's business." I quote from the testimony of Martha a question and answer which seem to me to throw considerable light upon the attitude of Katherine toward testator's children:
"Q. Tell the jury what she [Katherine] said to your father about your conduct and the conduct of your sisters? Did she tell your father anything that wasn't true about what your conduct was and what was it she said? A. Oh, that we were going around all hours of the night. If we were home by ten o'clock it would usually be ten-thirty, or eleven or twelve in her stories. It didn't make any difference who we knew, they were not any good."
This witness testified that she worked through the summer vacations before she graduated from school in 1931 and that her wages were handled by Katherine. Then there was evidence that when the children were small they were taken from the farm home to the home of Katherine in Washington. One witness testified that they hardly got acquainted with their mother. There was also evidence that when the father was away from Katherine he was kind to them; that when Katherine was with him his attitude seemed to change. There is evidence that after Katherine came into testator's home to stay she participated actively in the farm affairs and in dealings. There is likewise evidence that when testator's wife left the farm home, following the coming thereto of Katherine, she lived with various of her children, who contributed to her support; that after she left the farm home testator did not contribute to her support.
There was in the record testimony that up to the time the testator was enfeebled by sickness he was a person of strong will, independent, and with a dominating character. After a careful study of the record showing testator's weakness in the *Page 160 direction of Katherine Melinski and his open and utter disregard of his wife and his children it might be inferred that, dominating as was his character, in the person of Katherine Melinski he found one who dominated him. I think that such a condition might reasonably be inferred. There can be little question that the bringing of Katherine into testator's home was the direct cause of testator's wife, the mother of his children, leaving her home and going to live with others — others who from that time on supported her. The jury could fairly infer that Katherine actively participated in the procurement of the will. The time when made and the circumstances attending its making are highly significant. True, the evidence is circumstantial, but in cases like this rarely is direct evidence obtainable. The inferences are there. Here the testator was in the last stages of a fatal malady, was weakened and enfeebled. Katherine became the beneficiary of substantially all of the property, and yet, within a few days following, we behold the travesty of a marriage ceremony. It could be reasonably inferred that Katherine had in mind in going through the marriage ceremony the uncertainties of the effect of the will and the consummation by marital relation was simply an anchor to the windward.
Katherine, so far as moral relations, owned the testator for close to forty years. She exhibited such control before testator's children and the public. She went into the home and her entrance there caused a true wife to depart. She procured the making of the will, thereby being devised the great bulk of the property, and then, as the final act, went through the mockery of a wedding ceremony, accompanied by the sordid observation to the effect that this should have been done long ago.
The majority opinion, while calling attention to some matters shown in the record which appellants claim showed the aversion of Katherine to them, and as seeking to turn testator against his children, states that this happened some seven years ago. The inference seems to be that this was too remote and that its effect had passed away. My understanding of the rule is that remoteness in itself does not exclude evidence that is competent; it merely goes to its weight — something not for the court but for the jury. On the other hand, various facts and *Page 161 circumstances bearing upon this question were much more recent than seven years before. Again the jury might reasonably infer that such things would gain their end and leave Katherine in charge, as the evidence shows she was throughout the entire forty years. The jury could rightly consider the result, aided by the evidence of the nature and disposition of the principal beneficiary. They might properly infer that she exercised over the testator for about forty years an influence which transcended any which normally accompanies the ordinary affairs of life. Certainly one who could cause a husband to cast aside in a moral way the one to whom he had given a lifetime vow to love, cherish, and protect, who had borne him children, who had kept his home, and could cause testator to openly and brazenly flout before his children and the public his infidelity and unfaithfulness, I repeat, a jury might justly and reasonably infer that such person would go the whole way and cause the testator, out of his sin and weakness, to give to her substantially all of his property, thereby excluding his own flesh and blood.
I would reverse.
SMITH, J., joins in this dissent.