Goodale v. Murray

• Decision Date: 09 January 1940
• Docket Number: 44728.
• Citation: 289 N.W. 450,227 Iowa 843
• Parties: GOODALE v. MURRAY et al.
• Court: Iowa Supreme Court

289 N.W. 450

227 Iowa 843

GOODALE v. MURRAY et al.

No. 44728.

Supreme Court of Iowa.

January 9, 1940

Appeal from District Court, Chickasaw County; W. L. Eichendorf Judge.

A proceeding on petition in probate to establish a lost will. There was a trial to the court resulting in a judgment establishing the proffered will as the last testament of the deceased, and directing the clerk of court to publish notice of the probate of the will. Of the defendants, the State of Iowa, alone, has appealed.

The judgment is affirmed.

Geiser & Donahue, of New Hampton, for plaintiff-appellee.

William J. Kennedy, Co. Atty., of New Hampton, for defendants-appellees.

Fred D Everett, Atty. Gen., and John E. Mulroney and Floyd Philbrick, Asst. Attys. Gen., for the State of Iowa, defendant-appellant.

BLISS Justice.

The proceeding was commenced by plaintiff filing her petition in equity to establish and probate the lost will of Henry Dieckman, deceased. George C. Murray, sheriff of Chickasaw County, had been appointed administrator of the estate of the deceased. The deceased had never married, so far as known, and left no known heirs. For that reason Frank Vaala, the tenant on the land, Chickasaw County, the State of Iowa, the unknown heirs of the deceased, and the unknown claimants to the land, consisting of about 170 acres, of which the decedent died seized, were all made defendants in the action. The deceased also left personal property of about the value of $900. Plaintiff alleged that Dieckman died testate, on May 16, 1937, having executed his last will about the year 1920, by the terms of which he had bequeathed and devised all of his property to the plaintiff, but that said will was lost and could not be found, and that he had not revoked said will, nor made a later one. On motion of the defendants, the cause was transferred to the probate side of the calendar. On motion of the defendants, a part of the prayer of the petition, stating that the defendants had no interest in the estate, and that plaintiff as sole devisee was entitled to all of it, and that title to the real estate be quieted in the plaintiff, and asking general equitable relief, was stricken. Thereafter plaintiff amended the prayer of her petition, by adding: " That said will be ordered filed for probate and notice of probate thereof given and that the same be admitted to probate as the last will and testament of Henry Dieckman, deceased." All defendants then refiled their answers, which were general denials, on the probate side of the calendar.

Before the introduction of any testimony, Mr. Bookin, attorney for the State of Iowa, made the following objection: " Comes now the defendant, State of Iowa, and the defendant George C. Murray, as Administrator of the Estate of Henry Dieckman, deceased, by John H. Mitchell, Charles Bookin and Charles Wilson, attorneys for the State of Iowa, and Cronin & Kennedy, attorneys for George C. Murray and Chickasaw County, Iowa, and object to the jurisdiction of this court to proceed at this time in an attempt to establish the contents of the will for the reason that said matter is properly triable to a jury, and contend, and each of them request that the matter of the contents and all other matters germane to the establishment of the lost will be submitted to a jury, instead of to the court." The objection was overruled and the defendants excepted. The appellant's assignment of error thereon will be hereinafter referred to.

The record discloses, without evidence to the contrary, that Dieckman was a native of Germany, who came to Chickasaw County about forty-five years before his death. He was a stonemason by trade. When he first came to the United States and to Chickasaw County, he worked at the farm home of Matt Doyle, the father of the plaintiff. He built foundations for the farm buildings, and helped in making other improvements. Doyle befriended him in various ways. One witness, who knew Dieckman for nearly forty years, and who had employed him, testified that Dieckman told him that: " The Doyles made a man of him and got him to invest his money in land and that he appreciated it." Another acquaintance of many years, for whom Dieckman had worked, testified: " He talked to me about his property and about the Doyles. He told me that the Doyles were his best friends and he called her (Clara Doyle) his little girl, and that she was his best friend. * * * He said the Doyles always helped him when he was in need and he said I could come any day there to get help, and he said Doyle helped him get his property."

Charles Koblassa, a farmer, merchant, butcher and cattle buyer, testified: " I knew Henry Dieckman about twenty five years before his death. About six or eight years ago I bought cattle from him and asked him if he had any relatives in the old country. He said yes, I got some brothers in the old country. I said have you any brothers here you can leave your property to. He said it wouldn't do any good because my relation don't get anything out of my property and that he wasn't used right in the old country." John Wright, of Mitchell County, was an acquaintance of forty years, for whom Dieckman had built a house, barn and hog house, and had done other work from 1900 to 1922. They visited at each other's homes two or three times a year until the death of Dieckman. He testified that about eight or ten years before Dieckman's death, the latter talked to him about the Doyles and his property. " He said Mr. Doyle had started him out in farming and got him to buy some land and when he got through with it he expected it to go back to the Doyles. * * * He didn't tell me which Doyle. I don't think he mentioned that. He said he expected it to go back to the Doyles. He didn't say he had made a will leaving it to Clara Doyle."

Frank Doyle testified: " I live in Deerfield Township, in Chickasaw County and have lived there for sixty years. I knew Henry Dieckman for a period of forty-five years before he died. He worked on our place for my father, Matt Doyle. He owned land near father's land. My father died in 1923 and I found papers in his safety deposit box which belonged to Henry Dieckman, such as deeds and abstracts for land and some bad notes and receipts. I did not find any will amongst those papers. Those papers came into my possession on the 2d day of September, 1923, and I later delivered them to County Attorney Kennedy. Dieckman knew the papers were in my possession for after my father died I told him I had the papers and asked him if he wanted them or if he wanted me to take care of them and he told me to take care of them."

Frank Clark, of Mason City, testified that in 1918 he farmed about a mile and three quarters from Dieckman's place, and at that time he spoke of his property, and that Matt Doyle had got him to buy it, and that he was going to leave his property to Clara Doyle. On cross examination he said that in 1937 when the plaintiff called him he told her that Dieckman had never said to him that he " was making a will in her favor."

The plaintiff testified that she had known Dieckman since about forty-two years ago when he first came to work at her father's place. " I was always good to him because he was a friend of father. I was a small girl then and carried water for him and ran errands for him. We would go there to call on him and visit and pick flowers and grapes and he would go with us and help us and there were never any unpleasant relations between us. I was there at the time of his death. He was very low and I leaned over and asked him if he knew me. I said this was Clara Doyle and he said ‘ Clara’ once or twice. After I told him that, he began to grope around beside him and he handed me a paper wrapped in a cloth. It was a German newspaper, nothing but a German newspaper. I was present when he died on the 15th day of May, 1937, and he handed me this paper about an hour before he died. He was very weak at the time. I am a daughter of Matt Doyle and I knew that some of Mr. Dieckman's papers were in father's box at the time of father's death. I looked through those papers after his death to see whether there was any will and there was no will."

The husband of the plaintiff testified that he had known Dieckman for about twenty years before his death; that he and his wife had visited him, and on two occasions had taken him food, and that their relations with him were very friendly. There was no objection to any of the evidence thus far stated.

Karl Kobliska, thirty-six years old, testified that he had known Dieckman since he was eight years old; that they were very close friends; that he visited at Dieckman's home on different occasions and fed the stock for him occasionally when Dieckman was engaged in mason work; that he was there on the day of his death; that less than two weeks before his death he was at Dieckman's home and he talked with him about his property and his will. To the question as to what he said on these matters, Mr. Bookin, for the State, made this objection: " Just a minute. We object to the question as an attempt to introduce hearsay evidence of the declarations of the decedent testator, or alleged testator with no proper foundation having been laid; not within the recognized exceptions to the hearsay rule; calling for an opinion and conclusion of the witness, and incompetent irrelevant to any issue in this case." The objection was overruled. The witness testified that Dieckman, among other things, told him that: " He had worked for Matt Doyle; he built foundations for his buildings, and then he started to buy this land from Matt Doyle, and he used to borrow money from him, word for word, we never had a note or any mortgage or anything of that kind, and he said there was a date for the...