Mulroney, J.
On or about January 31, 1944, the will of Frank A. Shelangoski was admitted to probate in the district
court of Washington County, Iowa. The will provided in paragraph 1 for the payment of his debts and funeral expenses, and in paragraph 2, it provided as follows:
“After the provisions of paragraph one hereof are carried out, then it is my will and I hereby will, devise and bequeath all the property of which I die seized of, both real and personal to Katherine Melinski, who has been my housekeeper and has helped me in the acquiring and preserving of my property, same to be used by her for her care and enjoyment during her life, and subject only to the following directions to her; that she pay to each of my children named as follows, Adam R. Shel-angoski, Andrew A. Shelangoski, Irene Glider, Martha Johnston, Bertha Kupka and May Hopkins one dollar each, as soon after my • death as it is possible to do so as their share in my estate.”
Paragraphs 3 and 5 of the will directed that the residue of the estate that remains after the death of Katherine Melinski shall be disposed of as follows: Two hundred dollars to Irene Glider; two hundred dollars to Adam Shelangoski; one hundred dollars to each of Adam’s children, Martin and Darlene; and all balance “to go to Frederick Pheler who has faithfully helped me on the farm the past years. ’ ’ Katherine was named as executrix and she was directed to repay all money Adam had advanced to the testator.
The testator’s twin sons, Adam and Andrew, and his four daughters, Martha Johnston, Irene Glider, Bertha Kupka, and Mary Hopkins, filed their petition on the 14th of May 1945, alleging they were the sole heirs of the testator and that the above will was not the voluntary will of the testator but the result of Katherine’s undue influence over their father.
The testator’s children all testified. The boys were forty years Old at the time of, the trial, and the girls ranged in age from the youngest, Mary, who was twenty-six, to Irene, who was thirty-five.
The record shows that Frank Shelangoski married Katie Boroski and they went to live on a farm in Washington county. When the girls were of school age he brought them to Washington and placed them in the home of Katherine Melinski in
order that they might attend parochial school in Washington. Adam testified that he understood Katherine was reared in the same neighborhood as his father when his father was a young man. At times the boys, when they were children, would stay overnight with their sisters at Katherine’s home or apartment in Washington. It seems that Katherine generally worked as a maid or in the laundry in Washington.
The boys testified that on one occasion when they were about twelve years old their father was with them at Katherine’s home in Washington and he slept with Katherine. Adam testified he knew that his father had “been frequenting the house” where Katherine lived in Washington for ten years prior to 1924, when he and Andrew accompanied Katherine and his father and Katherine’s brother Leo on a trip to Minnesota. .He stated that on this trip his father and Katherine registered as Mr. and Mrs. Shelangoski. The evidence shows that the girls stayed with Katherine during most all of their school days; that Katherine took care of them — washing and ironing their clothes and cooking the meals and, with the children’s help, keeping the apartment clean and neat. When they worked, Katherine handled their money and their money, and Katherine’s wages would be used to pay the household expenses. They generally went back to the fairm during vacations and lived with their mother. Mary, the youngest, was the last to leave Katherine. She left about 1936, when she was about sixteen years old. The girls testified to many occasions when their father would stay all night at Katherine’s apartment during the years they lived there and on those occasions their father and Katherine occupied the same bedroom. This continued until 1936. In March of 1937 Katherine went out to the farm and about two or three months later Mrs. Shelangoski left the farm and she lived with one or another of her married children until she died in October of 1939. Katherine lived on at the farm as Frank Shelangoski’s housekeeper and around the first of October 1943 Frank Shelangoski was taken seriously ill. He consulted a doctor on October 6th and the doctor testified he found him suffering from pernicious anemia, which was quite progressive, and with no chance of recovery. He was not out
of bed much after October 6, 1943. On October 9th, while Mary Hopkins and her husband, Gerald Hopkins, were visiting at the farm, Katherine went to Washington with Frederick Pehler, a young man who had been helping on the farm. Mary Hopkins testified that while Katherine’ was gone from the house Mr. Louis J. Kehoe, an attorney in Washington, Iowa, arrived at the house with a typewriter. She stated her father was in bed and Mr. Kehoe went to his room and talked with him and when he came out he sat down at his typewriter and drew up some instrument; that Katherine arrived home while Mr. Kehoe was still there and that there was some talk by Mr. Kehoe and her father about her Uncle Pete (testator’s brother) coming back to be a witness to the will. She remembered Mr. Kehoe sitting around awhile and his finally asking her father if he did not have some neighbor who could be called in to witness the will and she heard her father suggest a neighbor, Mr. Tucker, and she heard her father tell Katherine to call Mr. Tucker and ask him to come over. She stated she heard Katherine tell her father that Mr. Tucker was there and that Katherine then went outside to feed the chickens and do other chores and Mr. Kehoe and Mr. Tucker went into her father’s room. She thought Katherine might have been back in the house again while Mr. Tucker was there, to bring eggs or something of that kind, but she did not go to the sickroom. The testimony of her husband, Gerald Hopkins, does not quite conform to her version of what transpired on October 9th. Ho testified:
“Mr. Kehoe came shortly after dinner. Nobody was with him, he had a typewriter with him, he went into Frank’s bedroom, I believe he was there about half an hour. Katherine Melinski was called into the room and she went in there. I think they were in there — well, it is just hard to judge, five or ten minutes, I couldn’t say for sure, then they came back out into the room and Mr. Kehoe left. He did do some typewriting. Later, before he left there was someone that came down there, I didn’t know him, he was in the room. Mr. Kehoe was typewriting while this man was in the room, this was all going-on in the room where Mr. Shelangoski was. The typing was done in the same room where Mr. Shelangoski was. Frank and
Mr. Kehoe and this fellow came in. He was not in while some of it was going on. Kehoe was doing quite a bit of typewriting. I could hear it from where I was sitting in the living room. I believe I heard the typewriter while Katherine Melinski was in there too.”
Mr. Tucker, who had been Frank Shelangoski’s neighbor for twenty-five years, testified he came to the Shelangoski home in response to the telephone call: that Mr.
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Mulroney, J.
On or about January 31, 1944, the will of Frank A. Shelangoski was admitted to probate in the district
court of Washington County, Iowa. The will provided in paragraph 1 for the payment of his debts and funeral expenses, and in paragraph 2, it provided as follows:
“After the provisions of paragraph one hereof are carried out, then it is my will and I hereby will, devise and bequeath all the property of which I die seized of, both real and personal to Katherine Melinski, who has been my housekeeper and has helped me in the acquiring and preserving of my property, same to be used by her for her care and enjoyment during her life, and subject only to the following directions to her; that she pay to each of my children named as follows, Adam R. Shel-angoski, Andrew A. Shelangoski, Irene Glider, Martha Johnston, Bertha Kupka and May Hopkins one dollar each, as soon after my • death as it is possible to do so as their share in my estate.”
Paragraphs 3 and 5 of the will directed that the residue of the estate that remains after the death of Katherine Melinski shall be disposed of as follows: Two hundred dollars to Irene Glider; two hundred dollars to Adam Shelangoski; one hundred dollars to each of Adam’s children, Martin and Darlene; and all balance “to go to Frederick Pheler who has faithfully helped me on the farm the past years. ’ ’ Katherine was named as executrix and she was directed to repay all money Adam had advanced to the testator.
The testator’s twin sons, Adam and Andrew, and his four daughters, Martha Johnston, Irene Glider, Bertha Kupka, and Mary Hopkins, filed their petition on the 14th of May 1945, alleging they were the sole heirs of the testator and that the above will was not the voluntary will of the testator but the result of Katherine’s undue influence over their father.
The testator’s children all testified. The boys were forty years Old at the time of, the trial, and the girls ranged in age from the youngest, Mary, who was twenty-six, to Irene, who was thirty-five.
The record shows that Frank Shelangoski married Katie Boroski and they went to live on a farm in Washington county. When the girls were of school age he brought them to Washington and placed them in the home of Katherine Melinski in
order that they might attend parochial school in Washington. Adam testified that he understood Katherine was reared in the same neighborhood as his father when his father was a young man. At times the boys, when they were children, would stay overnight with their sisters at Katherine’s home or apartment in Washington. It seems that Katherine generally worked as a maid or in the laundry in Washington.
The boys testified that on one occasion when they were about twelve years old their father was with them at Katherine’s home in Washington and he slept with Katherine. Adam testified he knew that his father had “been frequenting the house” where Katherine lived in Washington for ten years prior to 1924, when he and Andrew accompanied Katherine and his father and Katherine’s brother Leo on a trip to Minnesota. .He stated that on this trip his father and Katherine registered as Mr. and Mrs. Shelangoski. The evidence shows that the girls stayed with Katherine during most all of their school days; that Katherine took care of them — washing and ironing their clothes and cooking the meals and, with the children’s help, keeping the apartment clean and neat. When they worked, Katherine handled their money and their money, and Katherine’s wages would be used to pay the household expenses. They generally went back to the fairm during vacations and lived with their mother. Mary, the youngest, was the last to leave Katherine. She left about 1936, when she was about sixteen years old. The girls testified to many occasions when their father would stay all night at Katherine’s apartment during the years they lived there and on those occasions their father and Katherine occupied the same bedroom. This continued until 1936. In March of 1937 Katherine went out to the farm and about two or three months later Mrs. Shelangoski left the farm and she lived with one or another of her married children until she died in October of 1939. Katherine lived on at the farm as Frank Shelangoski’s housekeeper and around the first of October 1943 Frank Shelangoski was taken seriously ill. He consulted a doctor on October 6th and the doctor testified he found him suffering from pernicious anemia, which was quite progressive, and with no chance of recovery. He was not out
of bed much after October 6, 1943. On October 9th, while Mary Hopkins and her husband, Gerald Hopkins, were visiting at the farm, Katherine went to Washington with Frederick Pehler, a young man who had been helping on the farm. Mary Hopkins testified that while Katherine’ was gone from the house Mr. Louis J. Kehoe, an attorney in Washington, Iowa, arrived at the house with a typewriter. She stated her father was in bed and Mr. Kehoe went to his room and talked with him and when he came out he sat down at his typewriter and drew up some instrument; that Katherine arrived home while Mr. Kehoe was still there and that there was some talk by Mr. Kehoe and her father about her Uncle Pete (testator’s brother) coming back to be a witness to the will. She remembered Mr. Kehoe sitting around awhile and his finally asking her father if he did not have some neighbor who could be called in to witness the will and she heard her father suggest a neighbor, Mr. Tucker, and she heard her father tell Katherine to call Mr. Tucker and ask him to come over. She stated she heard Katherine tell her father that Mr. Tucker was there and that Katherine then went outside to feed the chickens and do other chores and Mr. Kehoe and Mr. Tucker went into her father’s room. She thought Katherine might have been back in the house again while Mr. Tucker was there, to bring eggs or something of that kind, but she did not go to the sickroom. The testimony of her husband, Gerald Hopkins, does not quite conform to her version of what transpired on October 9th. Ho testified:
“Mr. Kehoe came shortly after dinner. Nobody was with him, he had a typewriter with him, he went into Frank’s bedroom, I believe he was there about half an hour. Katherine Melinski was called into the room and she went in there. I think they were in there — well, it is just hard to judge, five or ten minutes, I couldn’t say for sure, then they came back out into the room and Mr. Kehoe left. He did do some typewriting. Later, before he left there was someone that came down there, I didn’t know him, he was in the room. Mr. Kehoe was typewriting while this man was in the room, this was all going-on in the room where Mr. Shelangoski was. The typing was done in the same room where Mr. Shelangoski was. Frank and
Mr. Kehoe and this fellow came in. He was not in while some of it was going on. Kehoe was doing quite a bit of typewriting. I could hear it from where I was sitting in the living room. I believe I heard the typewriter while Katherine Melinski was in there too.”
Mr. Tucker, who had been Frank Shelangoski’s neighbor for twenty-five years, testified he came to the Shelangoski home in response to the telephone call: that Mr. Kehoe met him out in the yard and explained that Frank’s brother was expected, to come and sign some instrument and that he did not come so they had called him. He stated that he went to the sickroom with Mr. Kehoe, where he signed as a witness on the will and left in about fifteen minutes; that Katherine was not in the room at the time and he did not remember seeing Katherine around the premises on that particular occasion. The only thing he remembered that Frank said when he came into the sickroom was: “ ‘ I wanted to get my business in shape. I do not know whether I am going to die or not.’ ” He had been a neighbor of Frank Shelangoski for twenty-five years and had exchanged work with him. He stated that Frank was always the “boss.” The following is a part of Mr. Tucker’s testimony:
“ Q. He was that type of individual — he was very definite in his ideas and there wasn’t anybody that influenced him with reference to those ideas? A. No, I do not believe so. Q. He was one’ of those men who had made his own way in life and managed his own affairs without interference or suggestions from other people? A. I think so. Q. As you observed that situation. A. Yes.”
Sometime about January 14, 1944, Frank Shelangoski married Katherine. The record shows that his brother, I. C. Shel-angoski, and his brother’s wife, were present in the Shelangoski home the day of the wedding. I. C. Shelangoski testified that Frank sat up in a rocking chair during the wedding and he heard Katherine say “they ought to have been married long ago.” On January 19, 1944, Frank Shelangoski died at the age of sixty-four years. The only intimation in the record as to the size of his estate is a stipulation which would indicate he
owned a farm of one hundred twenty acres in Washington county, which was mortgaged in the principal sum of $5,500. At the conclusion of the plaintiffs’ testimony the trial court directed the verdict for defendants.
While plaintiffs’ brief and argument is in one division, there are really two propositions argued. The first contention of plaintiffs is that, the evidence being sufficient to warrant a finding of a long-continued illicit relationship between the deceased and Katherine prior to the execution of the will, this, standing alone, will support the setting aside of the will. The second proposition is that if illicit relationship be considered as insufficient to make out a prima facie case, then it is a circumstance which, with other evidence of acts and circumstances showing Katherine’s undue influence, would support the setting aside of the will.
I. The only decision of this court which touches the proposition is the ease of In re Estate of Lathrop, 190 Iowa 684, 685, 180 N. W. 737. There the argument was made “that, the illicit relation being established, this of itself furnished sufficient evidence to go to the jury on the question of undue influence.” But we did not decide the proposition for we held the evidence o,f illicit relationship was insufficient. Two other decisions of this court cited by plaintiffs, Leighton v. Orr, 44 Iowa 679, and Hanna v. Wilcox, 53 Iowa 547, 549, 5 N. W. 717, 718, involve actions to set aside transfers where the transferor had illicit relationship with the transferee. The rule of those cases, as stated in the Hanna case, is:
“* * * 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.. ’ ’
But this rule has no application to testamentary gifts. We so held, with respect to the existence of a fiduciary relationship, in Graham v. Courtright, 180 Iowa 394, 405, 161 N. W. 774, 777, where we stated:
“The doctrine that undue influence is to be presumed as between parties inter vivos, dealing with each other when fi
duciary relations exist between them, has no application to testamentary gifts.”
The opinion states the reason the rule applies in inter vivos transactions is that a person is not likely to part with property without consideration during life and when it appears he has given it away to one in a dominating position the presumption arises that he has not freely parted with it. But the reason for the rule is not present where the testator is undertaking to give his property away upon his death. The opinion in the Graham ease, at page 406 of 180 Iowa, page 778 of 161 N. W., points out:
“There cannot be an assumption that testator would not part with his property, for in the nature of things that is the object of his testament, and the property necessarily must pass to others upon his death. Another reason for this distinction, recognized by the authorities, is that the donee or grantee inter vivos is a party to the transaction and possessed of knowledge in relation thereto, and therefore is in a situation to present the facts to court or jury, whereas a beneficiary is not necessarily a party to the execution of the will, and may have no knowledge thereof until years after it has been made.”
For the same reasons a presumption of undue influence should not be based on the mere existence of an illicit relationship between the beneficiary under the will and the testator. The law accords to the testator a free right of testamentary disposition consistent with law. The effect of a principle that his will could be annulled by a mere showing of an illicit relationship between, himself and the beneficiary would, in a great many cases, be a denial of this free right to dispose of his property as he wishes. The authorities generally- hold that an illicit relationship is not sufficient to warrant 'a conclusion of undue influence. The rule as stated in 68 C. J. 786, section 468, is:
“The mere existence of illicit, improper, unlawful, or meretricious relations between the testator and the beneficiary or the beneficiary’s mother is insufficient of itself to prove fraud or undue influence, although the existence of such relations is
an important fact to be considered by tbe jury along with other evidence of undue influence, giving to other circumstances a significance which they might not otherwise have * *
And in 28 R. C. L. 148, section 102, it is stated:
“There appears to be a general concurrence in the authorities that an illicit relation is not sufficient per se to warrant a conclusion of undue influence, and that no presumption of undue influence arises merely from the fact that a man, who is of sound mind, makes a will in favor of his mistress or of one with whom his relations have been meretricious.”
A good many of the cases holding the above rule have been collected in the annotations in 66 A. L. R. 243, and 154 A. L. R. 589. See, also, In re Kelly’s Estate, 150 Or. 598, 46 P. 2d 84. In line with the weight of authority we hold the existence of an illicit relationship between the testator and a beneficiary is not enough, per se, to raise a presumption that the will was procured by undue influence.
II. The evidence of other acts and circumstances which, plaintiffs argue, show that the will was the result of Katherine’s undue influence consists of the following: (1) false reports of the children’s conduct and disparaging statements about the children by Katherine (2) the serious illness of the testator at the time the will was drawn (3) the fact that Katherine went to town the day the will was drawn and Attorney Kehoe arrived from town shortly thereafter, from which it is to be inferred she employed Kehoe to “prepare and cause to be executed the instrument in question” (4) Katherine’s presence in the sickroom when the will was drawn, together with her attorney, Kehoe (5) the testator’s daughter, though present in the home, was not admitted to the sickroom and knew nothing of any will being drawn or contemplated (6) her attorney, Kehoe, was a witness to the will and intercepted the other witness in the yard to tell him what he was wanted for (7) Katherine coerced the testator into a marriage with her on his deathbed (8) the instrument was not read when it was signed.
The alleged false reports of some of the children’s conduct and the incidents when she called them names all occurred
about seven years before the will was drawn. The girls testified Katherine told their father they stayed out at night later than they actually did and she called them liars and sneaks to their father and on one occasion she called one of the girls a “snake in the grass.” This would hardly show Katherine’s undue influence in the execution of a will seven years later. The record shows the testator was seriously ill with an incurable malady when he executed the will some three months before he died, but that is the full extent of the testimony. There was no evidence that his illness affected his mind in any way. Mere proof of his physical illness does not support the claim of undue influence. The inference that Katherine went to town and hired Mr. Kehoe to come to the farm and draw the will is, so plaintiffs argue, to be drawn from the fact that Katherine went to town for the announced purpose to get groceries, and Mr. Kehoe did arrive while she was in town. The infere'nce is too strained. Of course, proof of undue influence can be circumstantial, but the evidence of circumstances must give rise to reasonable inferences. One would first have to infer a plan or scheme on Katherine’s part to have the testator draw a will in her favor before one could reasonably believe her trip to town was actually to employ Mr. Kehoe to come to the farm to draw the will. Whether Katherine was present in the sickroom when the will was drawn is not clearly shown in the evidence. The daughter Mary testified Katherine arrived home from her trip to Washington about the time Mr. Kehoe had finished typing. Mary’s husband said Katherine was called into the room; that the typing was done in the sickroom, and he believed he heard the typewriter while Katherine was in the sickroom. Counsel’s argument is that her presence in the room with her “hired hand” (Mr. Kehoe) shows the will was the product of her undue influence. Katherine was housekeeper for the sick man. The mere fact that Katherine might have gone to the sickroom while the attorney was typing the will would not be sufficient to base a conclusion that the will wás the result of her undue influence when there was no showing that she even knew the contents of the will. Counsel’s argument is based on an assumption that Mr. Kehoe was Katherine’s attorney. As we have pointed out,
there was no testimony to support such an assumption. There is no testimony that Mary Hopkins and her husband were “not admitted” to the sickroom while the wall was being drawn, in the sense that they were told by anyone to stay out of the room. Mary’s testimony shows she did know that her father was executing a will. Counsel argues the “hired hand” was one of the witnesses to the will and he intercepted the other witness in the yard to tell him that he was wanted as a witness to the will. The incident has no significance unless one first assumes Mr. Kehoe was Katherine’s “hired hand,” which, under this record, we cannot do. There is not any evidence that Katherine coerced the testator into marrying her, unless it be her statement at the time they were married to the effect that “they ought to have been married long ago.” In view of the relationship testified to by the other witnesses the statement was the natural expression of one who appeared to have lived in intimate union with the man she was marrying. Her understandable desire to crown that union , with a marriage ceremony cannot support-a conclusion that the will, drawn three months before, was the result of her undue influence. The argument that the will was not read by the testator when he signed it is based on Tucker’s testimony. His testimony is that neither Mr. Kehoe nor the testator read it in his presence but it was read to the testator but not in his (Tucker’s) presence.
This disposes of all the evidence which, counsel argues, aids the evidence of illicit relationship to support the claim of undue influence. The evidence which counsel points to does not reasonably tend to show that Katherine exerted undue influence on the mind of Frank Shelangoski. Mr. Tucker, plaintiffs’ witness, states that Frank Shelangoski was a man of very definite ideas and nobody influenced him with reference to those ideas and he managed his own affairs without interference or suggestions from other people. Were a jury to hold such a man was unduly influenced by Katherine so that his will was really the expression and will of Katherine, and not the free expression of his own will, under the record in this case, they would have to resort to strained and unreasonable conclusions and inferences. Frank Shelangoski had the power to dispose of his property
by Ms will. Our duty is not to criticize the conduct or morals of the testator or Katherine. As said in In re Kelly’s Estate, supra, 150 Or. 598, 618, 46 P. 2d 84, 91:
“ # * * the testator, if he chooses, may be actuated by base motives. The only essential is that the will which prompted him to make the bequest must be the will of the testator.”
The testator may have been prompted by an attachment for Katherine greater than his affection for his own children when he made the bequest to her. He may have felt that, because of their intimate relationship extending over a period of forty years, he was morally bound to provide for her. That such an attachment and such an intimate relationship might be a transgression against good conduct and his marital relationship is immaterial in the absence of a showing that the party rewarded by his affection used her position to influence the testamentary bequest. Those who contest this will have the burden of showing that Frank Shelangoski was not exercising his own free will when he executed the instrument. Their burden is not met by showing an illicit relationship which might have prompted the testator to leave his property in the manner he did. They fail to show more. The judgment is affirmed. — Affirmed.
Garfield, C. J., and Oliver, WeNNErstrum, Hays, and Hale, JJ., concur.
Mantz, Smith, and Bliss, JJ., dissent.