Coulter v. Petersen

• Decision Date: 23 June 1934
• Docket Number: No. 42509.,42509.
• Citation: 218 Iowa 512,255 N.W. 684
• Parties: COULTER et al. v. PETERSEN et al.
• Court: Iowa Supreme Court

218 Iowa 512

255 N.W. 684

COULTER et al.

v.PETERSEN et al.

No. 42509.

Supreme Court of Iowa.

June 23, 1934.

Appeal from District Court, Audubon County; Earl Peters, Judge.

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

Affirmed.Charles S. White, of Audubon, and Carl P. Knox, of Stuart, for appellants.

Graham & Graham, of Audubon, G. C. Dalton, of Atlantic, and L. H. Salinger and Ralph Maclean, both of Carroll, for appellees.

ALBERT, Justice.

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.

[1][2] 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.”

[3][4][5] 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, 2B.

In the case of Ewing v. McIntyre, 133 Mich. 459, 95 N. W. 540, 541, 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, 8 Humph. [Tenn.] 390, 47 Am. Dec. 622, holds the contrary. Morningstar v. Selby, 15 Ohio, 345, 45 Am. Dec. 579;Gaines v. Chew, 2 How. 619, 11 L. Ed. 402;Gaines v. Hennen, 24 How. 553;16 L. Ed. 770;Waters v. Stickney, 12 Allen [Mass.] 1, 90 Am. Dec. 122;Clark v. Wright, 3 Pick. [Mass.] 67; Davis v. Sigourney, 8 Metc. [Mass.] 487; Happy's Will, 4 Bibb. [Ky.] 553;Graham v. O'Fallon, 3 Mo. 507;Apperson v. Cattrell, 3 Port. [Ala.] 51, 29 Am. Dec. 239; Thornlin on Last Will, §§ 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 confersin general language upon probate courts author...