Gregg v. Myatt

• Citation: 42 N.W. 461,78 Iowa 703
• Parties: GREGG ET AL. v. MYATT ET AL.
• Decision Date: 23 May 1889
• Court: United States State Supreme Court of Iowa

78 Iowa 703

42 N.W. 461

GREGG ET AL.

v.MYATT ET AL.

Supreme Court of Iowa.

May 23, 1889.

Appeal from district court, Carroll county; J. H. MACOMBER, Judge.

Action in chancery to set aside a will which had been duly admitted to probate, on the ground that it was executed by the testator through undue influence. The answer alleges that the will was admitted to probate after notice, and that plaintiffs are therefore barred and estopped to maintain this action. A demurrer to this allegation of the answer was sustained. Defendants, standing on their pleading, appeal to this court.Benj. I. Salinger, for appellant.

BECK, J.

1. The answer, and exhibits constituting a part of it, show that notice by publication in a newspaper was given of the day fixed for the probate of the will. It appears that the will was admitted to probate upon the evidence of the subscribing witnesses, without contest or objection.

2. Code, § 2353, is in this language: “Wills, foreign or domestic, shall not be carried into effect until admitted to probate, as hereinbefore provided, and such probate shall be conclusive as to the due execution thereof, until set aside by an original or appellate proceeding.” It has been held by this court that the probate of a will may, under this section, be assailed or reviewed by original proceedings. Leighton v. Orr, 44 Iowa, 679;In re Middleton, 72 Iowa, 424, 34 N. W. Rep. 193. But it will be observed that in these cases it is not shown that there was personal service of notice of the probate of the will, or that the parties assailing the will by original proceedings appeared in the probate proceedings, and contested the validity of the will. In Smith v. James, 74 Iowa, 462, 38 N. W. Rep. 160, we held that when parties prosecuting an original proceeding to set aside a will admitted to probate appeared in the probate proceedings, made contest, had a trial, and waived a jury, they are estopped by the probate of the will, and cannot prosecute an original proceeding to set it aside. It will be observed that under the two cases first cited the probate of a will was not shown to have been had in a proceeding of which plaintiffs in an original proceeding to set aside the probate and will had notice, or in which they appeared and contested the wills. In these cases it was held that plaintiffs may maintain an original action assailing or reviewing the probate of the will. In the last case cited it is held that, where there was an appearance in the probate proceedings and contest of the will, and waiver of trial by jury, the parties so appearing and contesting the will cannot prosecute an original proceeding to set it aside. These decisions are harmonious...