Givens' Estate, In re

• Decision Date: 15 January 1963
• Docket Number: No. 50806,50806
• Citation: 119 N.W.2d 191,254 Iowa 1016
• Parties: In the Matter of the ESTATE of Lily GIVENS, Deceased.
• Court: Iowa Supreme Court

Page 191

119 N.W.2d 191

254 Iowa 1016

In the Matter of the ESTATE of Lily GIVENS, Deceased.

No. 50806.

Supreme Court of Iowa.

Jan. 15, 1963.

Rehearing Denied March 11, 1963.

Smith & Hanson, Emmetsburg, for plaintiffs-petitioners, proponents-appellants.

Linnan, Lynch & Straub, Algona, for defendants-contestants-appellees.

THOMPSON, Justice.

Lily Givens died a resident of West Bend, in Palo Alto County, on April 7, 1959. She was the widow of Dr. H. Frank Givens, who had practiced medicine in West Bend and vicinity since 1918. He died in April of 1958. The couple had no children. Dr. Givens left a last will which was duly probated. It bequeathed and devised his entire estate, with the exception of two specific bequests of $5,000 each, to his spouse, Lily Givens. The estate was substantial, amounting to approximately $250,000.

When Lily Givens died, a thorough search disclosed no existing will, although she had without doubt executed one in 1954. Her estate was opened as intestate, and B. K. Peterson, a banker and long time financial adviser to both Dr. and Mrs. Givens, was appointed administrator. He was also executor of the estate of Dr. Givens. This action to establish and probate a lost will was commenced shortly after. Upon the trial, a considerable volume of evidence was taken. The trial court found that the previous existence of a will of Lily Givens, executed in 1954, and its contents, had been established. But it also held that because the will could not be found, although a careful search was made in all places where there was any likelihood it might be located, the presumption of revocation had not been overcome. Judgment was entered for the contestants, and the proponents bring this appeal. The 1954 will of Lily Givens, the execution and contents of which the court found had been established, devised and bequeathed her entire estate to her husband, H. Frank Givens. The proponents here are heirs of H. Frank Givens, who would be entitled to claim under section 633.16 of the Code, I.C.A., the 'antilapse' statute, if the will of Lily Givens were established. The contestants are the heirs of Lily Givens, who take if she died intestate. Further facts will be stated as they become material in discussing the various issues presented.

I. We are faced first with procedural questions. The proponents demanded a jury trial, which the trial court denied. Error is assigned on this ruling. It is urged that the present proceeding is in fact a will contest and so a jury trial, if requested, is mandatory. The short answer is that we have held to the contrary in several cases which cannot fairly be distinguished, notwithstanding the efforts of able counsel so to do. It seems to be their theory that, since the trial court found there had been a will executed, and what its contents were, the matter then became a simple will contest. This would divide the trial into two parts: one, concerned with the execution of the will and its contents, triable to the court; the second, a will contest triable to a jury. This is not what we have held. A proceeding to establish a lost will requires proof of these items: 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 by the required quantum of proof; and 4, the contents of the will. In re Estate of Lawrence, 251 Iowa 305, 309, 100 N.W.2d 645, 649, and citations. It is only after each of these things has been proven that the will may be admitted to probate, and its admission challenged in an ordinary will contest.

In the case at bar the third requirement, in the judgment of the trial court, was not proven. So the point when a jury trial of a will contest is the proper procedure was not reached. Until it was, under our authorities the case was triable in probate to the court without a jury. In re Estate of Lawrence, supra, 251 Iowa 305, 308, 100 N.W.2d 645, 648; Goodale v. Murray, 227 Iowa 843, 856, 289 N.W. 450, 456, 126 A.L.R. 1121; Coulter v. Petersen, 218 Iowa 512, 514, 255 N.W. 684, 686. All four elements necessary to establish a lost will must be proven before we reach the point where the matter becomes an ordinary will contest.

II. The matter having been properly triable to the court in probate without a jury, its findings of fact, if supported by any substantial evidence, are binding on us. They have the effect of a jury verdict. Of course, this is true only if in reaching them the court applied proper rules of law.

III. The plaintiffs-proponents first five assigned error are related and will be treated in this division. It is asserted that the court was in error in holding the plaintiffs had the burden of proof on the issue of revocation; in holding that a presumption of revocation existed under the record in the case; in holding the plaintiffs had the duty to show what actually happened to the will of Lily Givens; in finding that the presumption of revocation was not rebutted, if such presumption existed; and in applying the standard of clear, convincing and satisfactory evidence to the issue of revocation, if the duty of overcoming the presumption of revocation was upon the plaintiffs.

It is plaintiffs' contention that, since they proved the existence of the will and its contents, the burden of showing revocation should have been placed upon the defendants-contestants. They cite numerous authorities to the effect that one who claims revocation of a will has the burden to so show. This is the general rule; but it does not apply to an attempt to prove a lost will. To hold as the plaintiffs ask us to do would eliminate the third requirement of proof of a lost will set out above. This requirement is equally important with the other three, and the lost will is not proven, although its former existence and contents are shown, until the presumption of revocation is overcome. To argue otherwise begs the question.

However, the plaintiffs assert that the presumption of revocation does not come into effect unless it is shown that the will was in the possession of the testator. So, in the case at bar, they point out that the 1954 wills of both Dr. and Mrs. Givens had been left with one Edwin Dorweiler, a family friend residing in West Bend. Mr. Dorweiler testified that on December 31, 1957, he took both wills to Dr. Givens. 'Dr. Givens was alone when I gave the wills to him. He was sitting in a chair in his living room. * * * He laid the wills on the table. I had the two white envelopes * * * and they was both inside of a brown envelope, and he laid that brown envelope down on his table there. * * * I never saw those wills again.'

It is the thought of plaintiffs that, since the wills were left in the possession of Dr. Givens, they were not in the possession of Lily Givens and so the presumption of revocation does not apply. Again, they are following a general rule; but again there is an exception or qualification. The general rule is set out in 57 Am.Jur., Wills, sec. 973, page 636, as contended for by the plaintiffs. But in the 1962 pocket parts, page 56, under sec. 973, page 636, we find this: 'Add, following 'destroyed will' in the fifth line in the section: Thus, 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.' Many authorities are cited in support of this exception. Among them we find Davis v. Davis, 298 Ky. 310, 182 S.W.2d 885, a case so nearly identical on the facts to the one before us that it is worthy of special note. We quote: 'We have noted that Mrs. Davis said she maintained custody of the will, but, according to her own testimony, it was kept in the Davis home in an unlocked box, so we fail to see how it could be said to be in her possession any more than that of Mr. Davis.' Loc. cit. 298 Ky. 310, 182 S.W.2d 886.

Our own case of Page v. Parks, 232 Iowa 879, 883, 884, 6 N.W.2d 298, 300, recognizes and applies the same exception. We there quoted with approval from 28 R.C.L. 385: 'It has been said, however, that the evidence to overcome the presumption that a lost will was destroyed by the testator animo revocandi must be clear, satisfactory, and convincing. * * * But the presumption is entirely overcome and rebutted when it appears that upon the execution of the will it was deposited by the testator with a custodian, and that the testator did not hereafter have it in his possession or have access to it.' See generally on this point 3 A.L.R.2d, Annotation, Lost Wills, page 956. The evidence in the case before us placed the will in the home of Dr. and Lily Givens, where both resided. Lily Givens outlived her husband by approximately a year. We cannot say that as a matter of law the will was not accessible to her at any or all times after it was left lying on the table in their home. Its accessibility was such, in fact, that the case comes clearly within the exception to the rule contended for by the plaintiffs. In fact, there seems no reason why Dr. Givens would have wished to destroy his wife's will, since the result would have been to disinherit his own next of kin in favor of the closest relatives of his wife. The socalled 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...