Allen v. Seaward

• Decision Date: 27 May 1892
• Citation: 52 N.W. 557,86 Iowa 718
• Parties: ALLEN ET AL. v. SEAWARD.
• Court: Iowa Supreme Court

86 Iowa 718

52 N.W. 557

ALLEN ET AL.

v.SEAWARD.

Supreme Court of Iowa.

May 27, 1892.

This is an appeal from an order sustaining a demurrer to a petition for a retaxation of costs in a contest as to the validity of an instrument purporting to be the last will and testament of Juliette Carman, deceased. The effect of the decision of the district court was that the costs were properly taxed to the estate of Juliette Carman. The plaintiffs, who are executors of the estate, claim that the costs should be taxed to Maria J. Seaward, who was unsuccessful in the case in which the costs accrued. Plaintiffs appeal.

ROTHROCK, J.

The appeal in this case stands upon a petition for rehearing. An opinion was filed affirming the judgment of the district court, (48 N. W. Rep. 985,) and the cause was again argued, upon a rehearing, and, upon a review of the whole record, we have arrived at a different conclusion from that announced upon the original submission. Juliette Carman made and executed what purported to be her last will and testament on the 25th day of April, 1887. The instrument was prepared by Hon. John Hilsinger, at Sabula. At the request of Mrs. Carman, the will was deposited in the safe of Hilsinger, to be kept by him until her death. Hilsinger was named in the will as executor. After the death of Mrs. Carman, Hilsinger sent the will to the clerk of the district court by mail. He did not at any time qualify as executor, and took no part as a party to the contest of the will. Mrs. Carman left surviving her, as her only heirs, the defendant, Maria J. Seaward, and Charles P. Carman, a son and daughter. The said will, when presented for probate, was proposed by Maria J. Seaward, who instituted and maintained the proceeding by which it was sought to establish and prove the will to be the last will and testament of her mother, Juliette Carman. C. P. Carman resisted the probate of the will, and claimed that said will was not valid, because it was procured by undue influence, and on the further ground that at the time it was executed the said Juliette Carman was not possessed of sufficient mental capacity to make a valid disposition of her property. The cause was fully tried to a jury, and a verdict was returned, by which the will was found to be invalid. Judgment was entered on the verdict, and Maria J. Seaward appealed to this court, and the judgment of the district court was affirmed. See 43 N. W. Rep. 542. After the judgment was entered in the district court, and in vacation, the clerk of the court being in doubt as to whom the costs of the case should be taxed, the judge who tried the case directed him to tax the costs of the trial to the estate of Juliette Carman, which was done. Afterwards, another will was duly probated as the last will and testament of Juliette Carman, and the plaintiffs herein were appointed executors. When it was discovered that the costs had been taxed to the estate, the executors made application in the form of a petition to retax the costs and tax them to the proponent, Maria J. Seaward. A demurrer to the petition to retax costs was sustained, and from the ruling on...