In re Canterbury's Estate

• Decision Date: 08 March 1938
• Docket Number: 44203.
• Citation: 278 N.W. 210,224 Iowa 1080
• Parties: In re CANTERBURY'S ESTATE.
• Court: Iowa Supreme Court

278 N.W. 210

224 Iowa 1080

In re CANTERBURY'S ESTATE.

No. 44203.

Supreme Court of Iowa.

March 8, 1938

Appeal from District Court, Polk County; O. S. Franklin, Judge.

This is an action for the construction of the will of James E Canterbury, deceased. The court construed the will in favor of the Elmore Memorial Adventist Christian Church respondent. The " First Adventis Church," petitioner, appeals.

Reversed.

Stull Lucier & Elmquist, of Des Moines, and U.S. Albertson, of Charleston, W. Va., for appellant.

Stanley L. Moody, of Des Moines, and J. T. Reynolds, of Charleston, W. Va., for appellee.

KINTZINGER, Justice.

The question involved in this case relates to the construction of paragraph 2 of the will of James E. Canterbury, deceased, who died at Des Moines, Iowa, in September, 1936. The material part of paragraph 2 of the will is as follows:

" I give, devise, bequeath, and appoint to the ‘ First Adventis Church’ located on Bigley Avenue in Charleston, West Virginia, certain notes and securities located in the Kanawha Valley Bank of Charleston, West Virginia. * * * If it ever becomes necessary to foreclose on said property, * * * I give, devise, and bequeath the above described property to the ‘ First Adventis Church’ on Bigley Avenue in Charleston, West Virginia."

The evidence shows without dispute that there is in fact a church known as the " First Adventis Church" in Charleston, W. Va., and that the petitioner herein is that church. The evidence shows, however, that the " First Adventis Church" is located upon Randolph street and not upon " Bigley avenue."

The evidence shows without dispute that there is another church on " Bigley avenue" known as the " Elmore Memorial Adventist Christian Church," the respondent and appellee herein. Appellee contends that the will should be construed in such a manner as to make the " Elmore Memorial Adventist Christian Church" the devisee and legatee under this will because it is located on " Bigley avenue."

The record tends to show that the decedent lived at Charleston, W. Va., between 1914 and 1918, and he sometimes attended the " Elmore Memorial Adventist Christian Church." He lived only a short distance from the " First Adventis Church" and owned property nearer that church than the other. The evidence also tends to show that the decedent, during the last two and a half years he lived in Charleston, regularly attended the " First Adventis Church" on Randolph street . There is also testimony tending to show that he was a lifelong friend of the pastor of the " Elmore Memorial Adventist Christian Church."

The attorney and scrivener who drew the will said that the decedent manifested no uncertainty as to the name of the church he intended making his beneficiary, and that he clearly designated the " First Adventis Church" as such. His testimony, however, tends to show that the decedent manifested some uncertainty as to the location of the church; he said that decedent stated there were two Adventist churches in Charleston, and he wanted to get the right one. He testified that decedent thought the church was on Randolph street and that he would advise him later on if there was to be any change; that the decedent did telephone the scrivener and advise him that the correct address of the church was " Bigley avenue," and that the church he was making his bequest to was located on " Bigley avenue." Aside from testimony tending to show decedent's close association with the " First Adventis Church" named in the will, there was no direct evidence contradicting that of the scrivener in relation to the location of the church he had in mind.

After both parties had rested, but before the case was submitted to the court, the appellant filed a motion to reopen the case for the purpose of introducing newly discovered evidence. This was overruled, the case was submitted and a judgment entered in favor of respondent, appellee. Petitioner appeals.

One of the errors alleged as a ground for reversal was the refusal of the court to reopen the case for the purpose of admitting the testimony of Mrs. Canterbury, widow of decedent. The petitioner, as a ground for reopening the case, showed that on several occasions prior to the trial its representatives interviewed Mrs. Canterbury, the surviving widow of the decedent, to ascertain what she knew about the case. On each occasion she refused to make any statement as to her knowledge of the matters in question, and told the representatives of the petitioner that she would make no statement as to what she knew about the case or what her testimony might be.

Mrs. Canterbury was present in court during the trial, but not until after the evidence was closed, and the arguments of counsel began, did she manifest any disposition to advise petitioner, or its counsel, what she knew about the case. The record shows that Mrs. Canterbury, the widow, also requested the court to permit her to testify, but on objection of counsel for respondent this was denied. The record shows further that at no time prior to the full submission of the case, down to the arguments, did the petitioner, or its counsel, know or have any knowledge as to the substance of the widow's testimony. It was further shown to the court that if Mrs. Canterbury were permitted to testify she would testify in accordance with an affidavit filed by her, marked Exhibit A; that said testimony is material to the issue in this case; and that even though the hearing was closed and final determination had not yet been reached and no prejudice would result to respondent or any other interested party thereby.

Her affidavit, made part of the showing, is as follows:

" Affidavit State of Iowa, Polk County, ss:

I, Loretta Canterbury, surviving wife of James E. Canterbury, deceased, being first duly sworn on oath depose and say that at the time of his death I was his wife and had been for some time prior thereto; that during the month of July, 1936, my husband in company with me drove to Charleston, West Virginia, and we remained in said city several days, and during our stay in the city we drove in the car together around the town, and on one particular occasion, my husband drove the car in front of the First Advent Church in said City of Charleston, West Virginia, and after making observation as to the name of said church, remarked to me that he had made a mistake and when I questioned him as to what mistake he had made, he replied that the First Advent Church was on Randolph Street and that he had designated Bigley Avenue in his will; that the First Advent Church was and is the church that was to receive the bequest and he told me to see that the correction was made if he was unable to make the correction or for any reason did not get the proper street in his will. That upon our return to Des Moines, Iowa, his condition became too grave and the matter was never referred to again.

I further state that if I am permitted to testify, I will testify as stated above and that this affidavit is made of my own free will, and I now indicate my desire to give this evidence as I previously did in open court.

[Signed] Loretta Canterbury.

Subscribed and sworn to before me on this 26th day of May, 1937, by Loretta Canterbury.

[Signed] Beeler Stull, Notary Public in and for Polk County, Iowa."

Appellant contends that the court abused its discretion in not reopening the case for the purpose of receiving the testimony of Mrs. Canterbury.

Appellee contends that the granting or refusing of a motion to reopen the case is within the sound discretion of the court. This is the general rule, and, if the court has not abused its discretion, the case should not have been reopened. Osgood v. Bauder, 82 Iowa 171, 47 N.W. 1001; Baker v. Jamison et al., 73 Iowa 698, 36 N.W. 647; In re Estate of Rich, 199 Iowa 902, 200 N.W. 713; Cresco Union Sav. Bank v. Terry & Terry, 202 Iowa 778, 211 N.W. 228.

Likewise it is the rule that if the court, in failing to reopen the case, has abused its discretion, appellant should be entitled to a new trial. Schipfer v. Stone, 206 Iowa 328, 218 N.W. 568, 219 N.W. 933; Henderson v. Edwards, 191 Iowa 871, 183 N.W. 583, 16 A.L.R. 1090; Simpson College v. Executors of Mann's Estate, 203 Iowa 447, 212 N.W. 684; Wilbur v. Iowa Power & Light Co., Iowa, 275 N.W. 43; Cowan v. Musgrave, Ex'r, 73 Iowa 384, 35 N.W. 496; Sickles v. Dallas Center Bank, 81 Iowa 408, 46 N.W. 1089; Kimball & Champ v. Saguin, 86 Iowa 186, 53 N.W. 116; Tisdale v. Ennis, 144 Iowa 306, 122 N.W. 959; In re Estate of Carroll, 149 Iowa 617, 128 N.W. 929; First National Bank v. Fulton, 156 Iowa 734, 137 N.W. 1019.

Appellee...