In re Brown's Will

• Court: Iowa Supreme Court
• Writing for the Court: EVANS, C. J.
• Citation: In re Brown's Will, 143 Iowa 649, 120 N.W. 667 (Iowa 1909)
• Decision Date: 10 April 1909
• Parties: In re Matter of the Probate of the Will of ALEXANDER H. BROWN, Deceased, EMMA FRANCE, Proponent, Appellee, G. W. H. LOAN AND W. L. LOAN, Contestants, Appellants

120 N.W. 667

143 Iowa 649

In re Matter of the Probate of the Will of ALEXANDER H. BROWN, Deceased, EMMA FRANCE, Proponent, Appellee, G. W. H. LOAN AND W. L. LOAN, Contestants, Appellants

Supreme Court of Iowa, Des Moines

April 10, 1909

REHEARING DENIED, TUESDAY, SEPTEMBER 28, 1909.

Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge.

THE proponent presented for probate a will purporting to have been executed by deceased, Alexander H. Brown, on April 6 1897. The proponent is a daughter of the deceased. The contestants are grandsons of the deceased. They contested the probate of the proposed will on the following grounds: That in the spring of 1906 the said Alexander H. Brown revoked the said will now offered for probate by the due execution in a lawful manner of a subsequent will, which said subsequent will by its terms expressly revoked the said alleged will now offered for probate. That the will executed by the deceased in 1906 was destroyed by the said Alexander H. Brown in his lifetime, with the intention of revoking it, and by reason thereof said Alexander H. Brown died intestate. There was a trial to a jury, and a verdict sustaining the will. Judgment was entered accordingly, and contestants appeal.

Affirmed.

Bailey & Murphy, for appellants.

Baker & Ball and Wade, Dutcher & Davis, for appellee.

OPINION

EVANS, C. J.

The preliminary statement already made indicates the general theory of the contest. The contestants introduced evidence tending to show: That in the latter part of 1905, or at the beginning of 1906, H. E. Porter, a lawyer of Lone Tree, prepared for the deceased a draft of a will which purported to dispose of his entire estate. That the first sentence in such draft of the will read as follows: "I, A. H. Brown, of the town of Lone Tree, County of Johnson, and State of Iowa, being of sound and disposing mind, do make, publish, and declare this my last will and testament, hereby revoking all wills by me at any time heretofore made." That such draft was not signed at that time by the testator, but was taken away by him. That some months later, in the early part of the summer of 1906, the testator signed some instrument in the presence of witnesses Lutz and Younkin, and he requested that they witness the execution of the same as his will, and they both signed the same as subscribing witnesses. They did not see the contents of the paper which was thus signed, but Brown stated to them that it was his will. That some time in the fall of 1906 Brown exhibited an instrument to Porter, which Porter recognized as the draft of the will which he had formerly drawn, and it contained at that time the names of Brown and Lutz and Younkin. The contestants based their contest upon the contention that the alleged will of 1906 contained the clause "hereby revoking all wills by me at any time heretofore made." At the time of the submission of the case they expressly stated into the record that they did not wish any instruction to the jury on the question whether the provisions of the subsequent will in their disposition of property were inconsistent with the terms of the will offered for probate. The case was submitted in accord with this statement.

I. The first error argued by appellants relates to the alleged refusal of the court to permit the witnesses Lutz and Younkin to testify fully concerning the statements made by A. H. Brown at the time he executed the subsequent will. Appellants' argument at this point goes quite beyond the state of the record. It is assumed in the argument that the alleged subscribing witnesses to the 1906 will, Lutz and Younkin, were not permitted to testify to the statements of Brown concerning the instrument which he was then executing. It is argued that the contestants were entitled to prove that Brown said the instrument which he was then executing was his will. This contention may readily be conceded. Turning to the record, we find that each of the witnesses testified to that effect without objection. From the testimony of Younkin we quote as follows: "He said he had a will he wanted me to sign." Again: "Well, he (Brown) walked up to the desk and signed it. He said it was a will, and stepped up and signed it, and then Mr. Lutz signed it." Younkin also testified that Brown said he wanted "young men" to sign as witnesses, and this was ruled out as immaterial. There was no error in this ruling. After Younkin had testified to all the statements above quoted, contestants' counsel put to him the following question: "Mr. Brown told you it was his will, didn't he? (Objected to as leading. Sustained)." This question was also put: "I will ask you if Mr. Brown, at the time he asked you to sign this instrument as a witness, made any statement in reference to having made other wills." This question was objected to, and ruled out by the court. There was no error in these rulings. The facts sought to be elicited by these questions had no relevancy to any issue in the case. We quote from the testimony of Lutz the following as to what Mr. Brown said to him: "I got a paper here I want you to sign. It's my will. He says: 'I have got to have two witnesses.' . . . He (Brown) was standing halfway like between the door and the desk, and made the statement he had a paper which was his last will that he would like to have us sign. He stepped up ahead of me to the desk and opened the paper--partly opened it; didn't open it all up--and signed the will." The expression "and signed the will" was stricken out, as being a mere conclusion of the witness as to what the paper was. The following question put to this witness was also ruled out on the same ground: "Q. You may state whether or not Mr. Brown signed this will in your presence and in the presence of Mr. Younkin." The rulings were proper. Other questions were properly ruled out as being leading. The following testimony of this witness was received without objection: "Mr. Brown said that the instrument he asked us to sign was his last will. He made the statement that this was his last will and he wanted us to sign it. He stepped up and signed it, and then I stepped up . . . and I signed it, and Mr. Younkin stepped up and signed it. . . . He said he wanted me to sign it. It was his will. He wanted me to sign it as a witness." It is manifest from the foregoing quotations that the contestants were allowed abundant latitude, so far as the introduction of testimony was concerned, as to the statements of the testator at the time of signing the alleged will. It should be said, however, that appellants' argument at this point is based in part upon an instruction of the court in relation to this testimony. Appellants claim that this instruction eliminated such testimony as was introduced. We will consider this instruction with others in a later paragraph.

II. At the close of the evidence the contestants moved for a directed verdict, on the ground that their evidence was uncontradicted to the effect that the subsequent will was executed, and that this fact of itself had the legal effect to revoke the former will. They also urged that the evidence was uncontradicted that the alleged will of 1906 contained a revoking clause, and that they were entitled to a directed verdict on either theory. This contention of appellants is so clearly untenable that we will not dwell upon it at great length. The burden was upon the contestants to prove the facts upon which they based the contest. The fact that proponent was unable to contradict the testimony of their witnesses as to particular facts did not entitle them to have such statements accepted as true. From the very nature of the case the proponent could not produce contradictory evidence on the particular facts in question. Nor can the appellants say that the facts testified to by their witnesses necessarily and directly proved the execution of a subsequent will. These facts constituted circumstantial evidence. The ultimate fact could only be found by proper inference from the circumstances. There was the evidence of Buell to be considered, who had drawn a draft of a will for Brown shortly prior to his interview with Lutz and Younkin. This draft of a will contained no revoking clause, nor was it inconsistent with the will offered for probate.

Appellants' contention that the mere execution of a subsequent will necessarily revokes a former will cannot be sustained. Section 3276 of the Code does not provide that the execution of a subsequent will necessarily revokes a former will. It provides that "wills can only be revoked in whole or in part by . . . or by the execution of subsequent wills." Whether in a given case a subsequent will amounts to a present revocation of a former will depends upon the contents of the subsequent will. In re Will of Dunahugh, 130 Iowa 692, 107 N.W. 925; Schillinger v. Bawek, 135 Iowa 131, 112 N.W. 210. In the case at bar appellants based their contest upon the allegation that the subsequent will contained a revoking clause. That narrowed the field of inquiry, and the case must be reviewed upon the same theory.

III. After the close of the evidence, before the argument to the jury had begun, appellants requested the court to submit to the jury for special finding the two following interrogatories: "(1) Did Alexander H. Brown during his lifetime make and execute a will subsequent to the will which is being offered for probate, which was executed in 1897? (2) Did such subsequent will contain a clause revoking all former wills and codicils?" The trial court refused to submit these interrogatories. We are not able to discover from the record that any exceptions were taken to this refusal of the court, unless a general statement contained in the certification of the record by the trial judge can be...