Bates v. Officer

• Decision Date: 15 December 1886
• Citation: 70 Iowa 343,30 N.W. 608
• Parties: BATES AND OTHERS v. OFFICER.
• Court: Iowa Supreme Court

70 Iowa 343

30 N.W. 608

BATES AND OTHERS

v.OFFICER.

Supreme Court of Iowa.

December 15, 1886.

Appeal from circuit court, Cerro Gordo county.

Isaac Spencer made his last will and testament on the fifth day of April, 1883, and afterwards died. The will was filed in the office of the clerk of the circuit court for probate. The testator, after making provision for his wife, gave all of the residue of his estate, real and personal, to his four children. One of these children was described in the will as an adopted daughter named G. S. Bates. She is the wife of one Curtis Bates, who was one of the attesting witnesses to the will. The defendant, who is one of the testator's children, contested the will. A trial was had, and the will was admitted to probate. The defendant appeals.Procter & Tollefsen, for appellant.

R. Wilber, Blythe & Markley, and Sherwin & Schermerhorn, for appellees.

ROTHROCK, J.

The court permitted the attesting witness Bates to testify as a witness to the execution of the will. His evidence was objected to, and the question as to his competency as a witness is the only one involved in the appeal. It is urged that Bates was not a competent attesting witness because his wife was a devisee under the will, and therefore the husband was interested in maintaining the will. We had occasion, in the case of Hawkins v. Hawkins, 54 Iowa, 443, S. C. 6 N. W. Rep. 699, to examine the question as to whether a wife is a competent subscribing witness to a will in which her husband is a legatee, and we held that she was. It is said, however, that in that case the bequest to the husband consisted of personal property, while in the present case the wife is a devisee of real estate. We are unable to see that this should change the rule adopted in the cited case. The rule is founded on the thought that the disqualifying interest must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent. This being the test of interest, it is very plain that any interest Bates may have in real estate devised to his wife depends upon the contingency that he may survive her, or that it may not be sold upon execution or judgment against his wife, or that he may not be divorced from her.

It is further claimed that Bates was an incompetent witness, under section 3639 of the Code, because, Isaac Spencer being dead, he is the husband of a party interested in establishing the will, and the testimony of the witness was a...