The conclusions which the majority opinion draws from the evidence and the final holding announced are of such a nature that I find myself unable to join therein and therefore respectfully dissent. The majority opinion fails to give consideration to certain fundamental rules which this court has in the past held to be basic in will-contest cases.
The burden is upon the contestants in a will-contest case to show that at the time of the execution of the will in question the testator did not have testamentary capacity. In re Estate of Heller, 233 Iowa 1356, 1365, 1366, 1367, 11 N.W.2d 586, 592, and cases there cited. A review of the evidence as set out in the majority opinion, and as disclosed by the record presented to this court, fails to show any mental incapacity *Page 471 at the time of the execution of the will. Inasmuch as this burden is upon the contestants it is my judgment that the trial court properly directed a verdict on that issue.
There is an entire absence of testimony to prove that undue influence was exerted at the time the will was executed. The burden to prove this condition is upon the contestant. Brackey v. Brackey, 151 Iowa 99, 101, 130 N.W. 370. It was stated in In re Estate of Heller, supra, as follows:
"Facts must be proven tending to show undue influence, or from which reasonable inferences of its exercise may be drawn."
Numerous authorities are cited in the opinion in support of the quoted statement. The evidence in the instant case, in my judgment, fails to show undue influence and no reasonable inference can be drawn that any influence was exercised at the time the will was executed. Consequently, the trial court further properly directed a verdict on that issue.
Unless this court desires to hold that former opinions are not to be guides to the bench and bar of this state in cases of this character we should adhere to our former rulings. Besides, the making of a will is a solemn and important act in an individual's life. The provisions of a will should be carried out and its probation should not be denied if the evidence presented does not meet the requirements of the rules previously announced by this court. By reason of my conclusions that the contestant has failed in the requirement of proof I would affirm. *Page 472