Beebe v. McFaul

• Citation: 125 Iowa 514,101 N.W. 267
• Parties: BEEBE ET AL. v. MCFAUL ET AL.
• Decision Date: 15 November 1904
• Court: United States State Supreme Court of Iowa

125 Iowa 514

101 N.W. 267

BEEBE ET AL.

v.MCFAUL ET AL.

Supreme Court of Iowa.

Nov. 15, 1904.

Appeal from District Court, Woodbury County; G. W. Wakefield, Judge.

Proceedings for the probate of an instrument purporting to be the last will of Christian Jacobson, an unmarried man, about 70 years of age, who died February 6, 1901, in Woodbury county, leaving no heirs, so far as known. On March 19, 1901, an instrument purporting to be the last will of said Jacobson was admitted to probate in said county, without contest, and the defendants in this proceeding, Niles A. McFaul and D. S. Lewis, were appointed executors thereof. In December, 1901, these plaintiffs, W. H. Beebe, and Alice Hisler, appeared and filed in said probate proceedings a petition praying that the order of probate so formerly made be set aside, and alleging that on February 4, 1901, said Jacobson executed a last will revoking all former wills, including the one admitted to probate under such order. It appears that such later instrument was produced and filed December 10, 1901, by one T. A. Kinney, and said petitioners are named therein as legatees. The defendants answered, and there was a trial to a jury, resulting in verdict and judgment for defendants. Petitioners appeal. Affirmed.M. J. Sweeley, A. J. Pritchard, and J. S. Lothrop, for appellants.

C. A. Dickson and Marks & Mould, for appellees.

BISHOP, J.

1. Omitting the prefatory clause, the instrument now produced reads as follows: “I want all the bequests I had T. A. Kinney to write in his little red-backed book to be paid first including the pallbearers, and all my honest debts. All the balance of my property to be divided equally between the following named parties, to wit: [Then follow the names of about 100 persons, including the names of plaintiffs.]” Nothing corresponding to a “little red-backed book” was filed with the alleged will, and, on motion of defendants, a rule issued requiring petitioners and T. A. Kinney to produce and file such book. In response thereto, Kinney produced and filed a red-backed book, said to be the one referred to in the instrument filed. Thereupon defendants moved that petitioners be required to state whether they adopted said book as a part of the will sought to be probated, and asked to have the same probated as part of such will. This motion was sustained, and petitioners took exception thereto, and they now complain of such ruling. As it appears that the petitioners at once filed an amendment to their petition, in which it is said: “That the red-backed book so filed is the one referred to in said last will, and the one mentioned in the plaintiffs' petition. Plaintiffs ask that the directions, bequests, and devises contained in said red-backed book be considered as a part of said last will of the decedent, Christian Jacobson”--the contention for error in the ruling of the court is without merit. If error there was, it was waived.

2. One of the grounds of defense presented was that the instrument now offered was never in fact executed by the decedent; that what purports to be his signature thereto was and is a forgery. On the trial there was testimony introduced by...