In re Convey
| Citation | 52 Iowa 197,2 N.W. 1084 |
| Parties | IN THE MATTER OF THE WILL OF LAWRENCE CONVEY, DECEASED. |
| Decision Date | 25 October 1879 |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Keokuk circuit court.
This was a proceeding for the probate of a will. Lincoln Convey, son of the decedent, contested the sufficiency of the will on the ground that the instrument was not executed by Lawrence Convey; that he was of unsound mind, was under the influence of intoxicating liquors, and his signature was procured through duress and undue influence. The cause was tried to a jury and a verdict found against the contestant, and the will was admitted to probate. The contestant appeals.Mackey, Harned & Fonda, for appellant.
Woodin & McJunkin and Sampson & Brown, for appellee.
1. The will in question disposes of all the property of the decedent without making any provision for the contestant, a minor son, further than to bequeath him a silver watch, or, in case of its loss, thirty dollars. The other beneficiaries of the will were other children and the mother of the deceased. There was evidence tending to show that the deceased, at the time the will is alleged to have been executed, was of unsound mind; that he was in the last stage of consumption, and was under the influence of intoxicating liquors, which he used as a remedy, or, rather, as a stimulant, to prolong his life. The witnesses to the will were not present when the testator subscribed the instrument.
2. Upon the issue involving the fact of the due execution of the will the court gave the jury the following instructions:
“ Second. In this state it is provided by statute that any person of full age and sound mind may execute a will, which, to be valid, must be in writing, witnessed by two competent witnesses, and signed by the testator, or by some person in his presence, and by his express direction.
Third. It therefore devolves upon the proponent (that is, the party seeking to have the will established) to show by the evidence that at the time of the execution of the will or instrument in question the testator, Lawrence Convey, was of sound mind; that he signed said instrument as and for his last will, and that such will was witnessed by two competent witnesses.
Fourth. While the onus of showing a compliance with the statute as above explained devolves upon the party seeking to establish the will, yet the formal execution may be shown by persons other that the subscribing witnesses, or may be inferred from circumstances, as well as established by the direct and positive testimony of the attesting witnesses, and it is sufficient if the statute was substantially complied with.
Fifth. The statute does not require that the subscribing witnesses shall see the testator write his name to the will; but it is sufficient if he did in fact sign the will, provided he afterwards acknowledged it as his will, and requested them to sign as witnesses.
Sixth. The attestation clause to the will is as follows: ‘The said will was signed, and at the request of the testator we signed the same as witnesses in his presence, and in the presence of each other.’ Now, if you find from the evidence that this attestation clause was read in the presence of the testator, and the witnesses at the time they signed the same, and was understood by the testator, this is sufficient presumptive proof, not only of publication, but also that the witnesses signed at his request.”
These instructions are made the subject of objections, which we will proceed to consider:
3. It is first insisted that the use of the word onus, in the fourth instruction, is erroneous, because it is not known to our language, and, therefore, it is to be presumed that it was not understood by the jurors. The objection is answered by the consideration that the word, though Latin, is incorporated into our language.
4. The other objections to the instruction may be answered together. The statute does not require that the witnesses shall see the testator subscribe the will. Code, § 2326. If the signature be adopted or acknowledged in the presence of the witnesses it is sufficient. Hall v. Hall, 17 Pick. 373;Dewey v. Dewey, 1 Met. 349; Butler v. Benson, 1 Barb. 536;Denton v. Franklin, 9 B. Mon. 28.
5. The fourth instruction is assailed on the ground that it holds the formal execution of the will, the subscribing thereof, may be shown by testimony other than that of the subscribing witnesses. This instruction, considered in connection with the fifth and sixth, is evidently not intended to express the thought that the testimony of the subscribing witnesses may be dispensed with, or that the will may be proved without calling them. It expresses the idea...
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