In re Bybee's Estate
| Decision Date | 15 January 1917 |
| Docket Number | 31122 |
| Citation | 160 N.W. 900,179 Iowa 1089 |
| Parties | IN RE ESTATE OF ANN BYBEE. v. MARY SIGLER et al., Appellees MARY RANSOM et al., Appellants, |
| Court | Iowa Supreme Court |
REHEARING DENIED SATURDAY, MAY 12, 1917.
Appeal from Pottawattamie District Court.--E. B. WOOD-RUFF, Judge.
MARY RANSOM and Amasa Bybee applied for an order to probate an alleged will of Ann Bybee's. The application was denied and proponents appeal.
Reversed.
Killpack & Northrop and C. E. Swanson, County Attorney, for appellants.
F. W Miller, for appellees.
I.
The brief for appellee has 76 pages, and strongly and exhaustively presents many questions. We are of the opinion that, while these were all pertinent before the decision appealed from was made, but one--by possibility, two--needs our consideration. No doubt many of the matters now argued would have been material if the court below had merely made an order declining probate; for such order would be presumed to pass upon every issue presented. But, of course, when the record shows affirmatively that none but stated questions were decided, the aforesaid presumption has no room to operate. We cannot review what has never been decided. The trial court ruled:
In our view of the record, the only question that remains for us to pass upon is whether the paper offered for probate does lack the required formalities of a will, and required attestations. The appellee contends for many things as being essential and necessary formalities of a last will and to the witnessing of the same. We think it will conduce to clarity if, instead of inquiring whether all that appellee demands is required, we proceed to state what formalities, attestations and witnessing are, in our opinion, necessary, and then to say whether any of these are lacking here.
II. We glean from an examination of an abstract, additional abstract for appellee, an amended additional abstract for appellee, the said brief for the appellee, the original brief for appellant, and the one filed in reply, that the instrument proposed for probate and rejected had the caption, "Warranty Deed." The body of it is in the ordinary form of warranty deeds, with claim of perfect title, authority to convey, freedom from liens and incumbrances, and a covenant to warrant and defend title. It purports to be made to the county of Pottawattamie, in consideration of $ 1 and certain other provisions named in the title. It contains this clause:
"This indenture to be effective after my death on the condition that Pottawattamie County, Iowa, pay any debts that I may be owing at that date, and pay my funeral expenses, if any, and said land to be sold, and balance of said amount to be used for the benefit of the poor of said county."
In connection with the signature of the grantor is, "Witness to signature, John A. Ransom." It purports to have been signed on the 7th day of January, 1909.
In the appropriate place for acknowledgment of the paper is this:
To this the notarial seal of Swanson was attached. We understand the trial court to hold that this instrument cannot be probated because it is not witnessed as wills are required to be. "That it lacks the formalities necessary to make it a will."
The only requirement the statute makes is found in Section 3274 of the Code, 1897, and is that the paper shall be signed by the testator "and witnessed by two competent persons." We do not understand that the competency of these witnesses is challenged, if there be two "witnesses," in contemplation of law.
The alleged testatrix signed a paper purporting to convey land, upon condition that the conveyance should not take effect until after her death. The law declares that this is not a conveyance, but a testamentary paper. It is of no consequence what she thought was the legal effect of it. The law settles its status and declares what it is. It need not be proved that the testator read over the will before signing, or was informed of its contents. Scott v. Hawk, 107 Iowa 723, 77 N.W. 467. It is only when the terms of the writing are not clear that collateral evidence may be received to ascertain its intent. In re Estate of Longer, 108 Iowa 34, 37, 78 N.W. 834. Otherwise, the intent will be gathered from the instrument itself. Wilson v. Carter, 132 Iowa 442, 109 N.W. 886. In re Estate of Longer, 108 Iowa 34, 37, 78 N.W. 834, cites from In re Lautenschlager's Estate, (Mich.) 45 N.W. 147, that:
"An instrument in the form of a deed, but executed with the formalities of a will, and by its terms to take effect after death, has been held a will."
And a paper stating, "I agree to will," may be a will. In re Estate of Longer, 108 Iowa 34, 78 N.W. 834.
If what the testator does sign proves to be what the law declares is a testament, and witnesses duly attest it, they have attested a will, though neither the testator nor the witnesses knew that the law declared the writing to be a will. As bearing upon this thought, it has been held that, where the will is witnessed, there is a conclusive presumption that it was signed before it was witnessed; that, such being the fact, "it was executed with all the formality required by the statute;" that it is unnecessary that witnesses should see the testator subscribe the will, nor necessary that testator should state to the witnesses the character and purpose of the instrument which they witness. In re Will of Hulse, 52 Iowa 662, 3 N.W. 734; Nixon v. Snellbaker, 155 Iowa 390, 136 N.W. 223; and, that a testator need not declare the instrument to be his last will, Scott v. Hawk, 107 Iowa 723, 77 N.W. 467. An attestation clause is not essential. Hull v. Hull, 117 Iowa 738; Nixon v. Snellbaker, 155 Iowa 390, 136 N.W. 223. In the absence of statute, it is not necessary that the witnesses attest in the presence of each other. Hull v. Hull, 117 Iowa 738. It is immaterial that witnesses write their names in the body of the will (Franks v. Chapman, 64 Tex. 159). or in what particular part of the will they subscribe their names. Murray v. Murphy, 39 Miss. 214. As said, the only requirement which the statute makes in terms is that the paper shall be signed by the testator and signed by two competent persons.
The law declares that this paper is testamentary. It is signed by the one professing to dispose. On the same side of the paper where the alleged testator signs, John A. Ransom signs as a witness to signature. Had there been another competent person so signing and signing in that place, there could be no question that the paper was duly signed, and was executed with all formality which our statute exacts. But there is no second signature of that kind. As has been said, the paper is in the form of a deed. It has a blank for acknowledgment. The other person asserted by the appellant to be the second witness signs only at the bottom...
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