Coulter v. Petersen

• Court: Iowa Supreme Court
• Writing for the Court: ALBERT, J.
• Citation: Coulter v. Petersen, 218 Iowa 512, 255 N.W. 684 (Iowa 1934)
• Decision Date: 23 June 1934
• Docket Number: 42509
• Parties: CHARLES T. COULTER, Executor, et al., Appellants, v. GOLDIE PETERSEN et al., Appellees

255 N.W. 684

218 Iowa 512

CHARLES T. COULTER, Executor, et al., Appellants, v. GOLDIE PETERSEN et al., Appellees

No. 42509

Supreme Court of Iowa, Des Moines

June 23, 1934

Appeal from Audubon District Court.--EARL PETERS, Judge.

An action to establish a lost will in an equitable proceeding. A motion was sustained to transfer the same to law, and plaintiffs appeal.

Affirmed.

Charles S. White and Carl P. Knox, for appellants.

Graham & Graham, C. C. Dalton, L. H. Salinger, and Ralph Maclean for appellees.

ALBERT J. CLAUSSEN, C. J., and ANDERSON, MITCHELL, and KINTZINGER JJ., concur.

OPINION

ALBERT, J.

The plaintiffs brought this action in equity, alleging that one L. B. Hepp had duly made and executed a will prior to his death on the 24th of September, 1931, and that same has been lost or destroyed. Plaintiffs set out a copy of the same, which they ask to be established as the lost or destroyed will of said Hepp, in lieu of the original, and that it be admitted to probate as the lost or destroyed will of said Hepp. Goldie Petersen, one of the defendants herein, filed a motion to transfer the cause from the equity docket to the law docket, and on the 4th of January, 1934, the court made an order that the same should be transferred to the probate court. Plaintiffs duly excepted, and hence this appeal.

The question involved in this appeal, therefore, is whether or not the court erred in transferring the cause to the probate docket.

That the jurisdiction of the probate court is separate and distinct from its ordinary law and equity jurisdiction, see Mollring v. Mollring, 184 Iowa 464, 167 N.W. 524. That courts of equity never had original jurisdiction to probate a will or set aside a probate, see Leighton v. Orr, 44 Iowa 679, loc. cit. 683. In other words, the whole trend of our decisions has been to make a definite distinction between the probate court and the equity court. To put it in another way, if a will were tendered in an equity court asking that the court admit the same to probate, the court would be without jurisdiction to make such order because the power to probate a will, under our procedure, lies exclusively with the probate court. As to whether or not an equity court has jurisdiction to establish a lost will (as distinguished from probating the same), there seems to be confusion in the authorities. In some instances the matter is controlled by statute, and aside therefrom, the courts do not agree in their opinions.

In 28 R. C. L. p. 363, after discussing the English rule, the text says:

"In this country, all probate and testamentary matters have in most if not all of the states been by statute confided either to separate courts of probate, under different denominations, or a special jurisdiction over them has been vested in courts having jurisdiction also over other subjects."

That courts of chancery do not have any jurisdiction to establish a lost or destroyed will and that such jurisdiction belongs solely to the probate court, see Anderson v. Anderson, 112 N.Y. 104, 19 N.E. 427, 2 L. R. A. 175; Domestic, etc., Missionary Society v. Eells, 68 Vt. 497, 35 A. 463, 54 Am. St. Rep. 888; Coghlin v. White, 273 Mass. 53, 172 N.E. 786; 40 Cyc. 1250, (2), (B).

In the case of Ewing v. McIntyre, 133 Mich. 459, 95 N.W. 540, this identical question was under discussion. That court said:

"The jurisdiction to admit wills to probate is now quite generally conferred upon probate courts, and in other states this extends to lost and destroyed wills, in some cases depending upon statutes expressly conferring such jurisdiction, in others, under general statutes authorizing the probate of wills and administration of estates. We are of the opinion that the weight of authority sustains the jurisdiction under such general statutes, notwithstanding the case of Buchanan v. Matlock, 27 Tenn. 390, 8 Humph. [Tenn.] 390, 47 Am. Dec. 622, holds the contrary. Morningstar v Selby, 15 Ohio 345, 45 Am. Dec. 579; Gaines v. Chew, 43 U.S. 619, 2 HOW 619, 11 L.Ed. 402; Gaines v. Hennen, 65 U.S. 553, 24 HOW 553, 16 L.Ed. 770; Waters v. Stickney, 94 Mass. 1, 90 Am. Dec. 122; Clark v. Wright, 20 Mass. 67; Davis v. Sigourney, 49 Mass. 487; Happy's Will, 4 Bibb. [Ky.] 553; Graham v. O'Fallon, 3 Mo. 507; Apperson v. Cottrell, 3 Port. 51, 29 Am. Dec. 239; Thornlin on Last Will, sections 5, 6. * * * Extended discussions of the subject will be found in several of these cases, especially Adams v. Adams, 22 Vt. 50, and Dower v. Seeds, 28 W.Va. 113, 139, 143, 57 Am. Rep. 646. In Michigan the statute confers in general language upon probate courts authority to probate wills and settle estates * * * 'There has never been any proceeding known to our laws for the mere purpose of establishing the will even of a deceased person. The probate of wills under our statutes is merely a part of the proceedings to administer the estates of deceased persons in the court that has jurisdiction and charge of such estates. This rule is so general that in some states devises are not probated at all, and in some the...