Crozier's Estate, In re

• Decision Date: 29 August 1975
• Docket Number: No. 56894,56894
• Citation: 232 N.W.2d 554
• Parties: In the Matter of the ESTATE of Floyd H. CROZIER, Deceased. Byron D. CROZIER, Appellee, v. Inez DOYLE et al., Appellants.
• Court: Iowa Supreme Court

Page 554

232 N.W.2d 554

In the Matter of the ESTATE of Floyd H. CROZIER, Deceased.

Byron D. CROZIER, Appellee, v. Inez DOYLE et al., Appellants.

No. 56894.

Supreme Court of Iowa.

Aug. 29, 1975.

Davis W. Moore, Jr., Denver, Colo., and Mullin, Mullin, McLaughlin & Harvey, Creston, Iowa, for appellants.

Jones, Cambridge, Carl, Feilmeyer & Landsness, Atlantic, for appellee.

Submitted to MOORE, C.J., and MASON, REES, HARRIS and McCORMICK, JJ.

MASON, Justice.

Byron D. Crozier filed his petition in probate seeking to establish and have admitted to probate an alleged lost will of his brother, Floyd, who died January 11, 1972. Floyd had executed a will May 17, 1958. Following his death a thorough search failed to disclose any executed will, although an unsigned carbon copy of the 1958 will was found among decedent's belongings.

The petitioner, Byron D. Crozier, was the residuary beneficiary under the 1958 will and named executor. Defendants are the other heirs at law and administrators of the estate of Floyd H. Crozier. They appeal from an adverse ruling.

It has been uniformly held by this court and courts generally that to establish a lost will it is incumbent upon the proponent to prove by clear, satisfactory and convincing evidence (1) due execution and former existence of the alleged will (2) that it has been lost and could not be found after diligent search (3) that the presumption of destruction by decedent with intent to revoke it, arising from its absence at death, has been rebutted, and (4) contents of the will. The evidence need not be free from doubt. Goodale v. Murray, 227 Iowa 843, 856--857, 289 N.W. 450, 456--457, 126 A.L.R. 1121; In Re Estate of Lawrence, 251 Iowa 305, 309, 100 N.W.2d 645, 646; In Re Estate of Givens, 254 Iowa 1016, 1019, 119 N.W.2d 191, 193; In Re Estate of Hasselstrom, 257 Iowa 1014, 1017, 135 N.W.2d 530, 533; In Re Estate of Hoxsey, 225 N.W.2d 141, 142 (Iowa 1975); and authorities cited in these opinions.

This action was triable in probate as one at law without a jury. Our review is not de novo but only upon the errors assigned.

The trial court found Byron had established by clear, satisfactory and convincing evidence first, the execution of the will, second, the fact the will could not be found though a diligent search had been made, and third, the will's provisions. A fourth element--evidence to rebut the presumption the will, when not found, had been revoked by decedent--gave the court more trouble. Nevertheless, it was held the presumption had been rebutted.

It is uncontradicted Floyd contacted Atlantic attorney Ray Yarham concerning the making of his will. May 17, 1958, in the presence of Mr. Yarham and the attorney's secretary, Lucille Conn, Floyd duly executed and signed a will which left the major portion of his estate to Byron. Floyd received the original and a duplicate copy. The remaining carbon copy was retained by the attorney. Both copies were unsigned, although Mrs. Conn later penciled in the names for record keeping purposes. Yarham furthermore warned Floyd to keep the will in a safe place so that it would not be destroyed by fire.

Floyd, a lifetime bachelor, had always lived on the oiriginal family homestead. While the farm home was destroyed by fire January 6, 1966, the will somehow survived the catastrophe, as Floyd filed A will with the Cass County Clerk January 10 of the same year.

Shortly after the fire, Floyd moved in with Byron and his wife where he remained free of charge (at Byron's insistence) until March 15, 1966. From there he lived for a short while in an old house on the homestead and finally moved into a cave on the property, which was Floyd's last place of abode.

Why he removed himself from the relative comforts of Byron's home to the cave may be answered by the fact Floyd lost some money from a closet in his brother's house. In this regard he contacted Yarham in his capacity as county attorney when Floyd also complained of shortage in his accounts at the Whitney Bank in Atlantic and the State Bank at Anita. The trial court found an investigation revealed no shortage at the banks.

For reasons undisclosed, Floyd signed for and removed A will from the clerk's office June 6, 1966. Sometime after this, Floyd misplaced his will, according to the testimony of Frank Henry Martin, who stated decedent sometime in May 1971, told him he had lost his will. The appendix indicates Martin informed decedent his lawyer or banker could make a copy of the will. In another conversation in late July or early August, Floyd stated he was 'getting something done' about the 'will deal' and thanked Martin for the advice. Floyd did not indicate just what he was getting done nor did he reveal any particulars about the will. In this regard, the abstract of Martin's testimony is somewhat at odds with the trial court's findings in that the court found Martin stated he did not know about the will and that Floyd should see his attorney.

May 26, 1971, Floyd also discussed his estate with Paul Krause, a lifetime acquaintance, regarding the tax consequences of leaving his estate to Byron, which would pass at Byron's death to his two sons. Floyd was concerned the estate would thereby be taxed twice. Krause told Floyd he did not know the answer. Floyd did not say what he would do and the matter was never mentioned again.

At Floyd's death Byron made the funeral arrangements and paid the costs. All of decedent's papers were moved to the home of Leonard Crozier, Byron's son, where Leonard, Byron and Byron's other son, Ralph, searched for the will. While the original was not found, the search did reveal the carbon copy of the 1958 will. On the front page was written 'will' which Ralph testified was in Floyd's handwriting. There were, however, no signatures.

A further search was made of all buildings at the homestead and inquiries were made of the area attorneys and banks. While other items were found, the original copy of the will was not.

January 17, 1972, upon the advice of Mr. Yarham, Byron petitioned to open the estate under the laws of intestacy. However, April 25, 1972, as stated, Byron filed a petition to probate a lost will, which, in turn, precipitated the events leading to this appeal.

At the close of petitioner's evidence and again at the close of all evidence defendants moved for directed verdict. The trial court reserved ruling on these motions until counsel had completed their arguments and then took the matter under advisement. In its findings of fact and conclusions of law the court also overruled the motions to direct. The court concluded the facts were 'inconsistent with and repugnant to an intention' to die intestate or revoke the will.

After the court filed its findings of fact defendants filed a combined motion for new trial and a re-examination of the findings of fact, conclusions of law and ruling on motion for directed verdict which they later amended. The court denied defendants' motion.

The issues presented for review by this appeal stem from defendants' contentions: (1) the trial court erred in holding proponent had established by clear, satisfactory and convincing evidence the four elements necessary to rebut the presumption decedent's will was destroyed and to grant the relief sought and also erred in overruling defendants' motions for a directed verdict and for a new trial; and (2) the trial court erred in placing evidentiary weight on the following:

A. The discovery of the unexecuted carbon copy of the will found in decedent's quarters which had the word 'will' written at the bottom of the first page.

B. The close relationship between decedent and his brother the last month of decedent's life.

C. Byron's testimony concerning the fact he would be responsible for decedent's funeral expenses.

I. Defendants rely on the rule recognized in Goodale v. Murray, 227 Iowa at 862--863, 289 N.W. at 459 and in In Re Estate of Givens, 254 Iowa at 1021--1022, 119 N.W.2d at 194, that the burden of proof of nonrevocation is on the proponent of a lost will shown to have been duly executed and in the possession of, or readily accessible to, the testator or which was not shown to have been in the possession of another at the time of its loss, in order to overcome the rebuttable presumption of revocation which prevails in such instances.

Thus, the immediate problem is the sufficiency of the evidence rebutting the presumption of revocation by decedent. This court has on numerous occasions discussed the presumption.

In Re Estate of Givens, 254 Iowa at 1022--1023, 119 N.W.2d at 194--195, has this statement:

'* * * The so-called presumption of revocation seems, in truth, to be really an inference of fact drawn from the inability to locate a will which was last known to have been in the possession of the testator or to which he had ready access; and generally it is a fact question as to whether the presumption, or inference, has been overcome. The presumption is not conclusive, and may be rebutted; it is not a burden impossible to carry.

'However, it must be carried by evidence stronger than a mere preponderance. We quote from Iowa Wesleyan College v. Jackson, 249 Iowa 91, 95, 86 N.W.2d 126, 129:

"Plaintiffs' burden is even more difficult than in the ordinary case. They confront a Presumption of law which requires much more than a preponderance of the evidence to overcome.

"* * * And the burden of one seeking to establish the will and overcome the presumption is to produce clear, satisfactory and convincing evidence to the contrary.' * * *.' (Emphasis in the original quote).

The court in Iowa Wesleyan, 249 Iowa at 96, 86 N.W.2d at 129, continued: 'True the burden of proof must not be held prohibitive or impossible to carry. In Goodale v. Murray, supra, the showing was held sufficient to overcome the presumption. Undoubtedly circumstantial evidence alone May be sufficient. But something more than mere preponderance must be established. The...