In re Droge's Will
| Decision Date | 20 June 1933 |
| Docket Number | No. 41825.,41825. |
| Parties | In re DROGE'S WILL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.
This is a will contest. Objections to the probate of the will were based upon the alleged fact that the will was not shown to have been duly executed. A jury was waived and the action tried to the court. There was a finding that the will was duly executed, and an order admitting it to probate. The contestant appeals.
Affirmed.Tinley & Tinley, Hans P. Nyholm, and Raymond J. Gibbons, all of Council Bluffs, for appellant.
Kimball, Peterson, Smith & Peterson, of Council Bluffs, for appellees.
Wilhelmina Droge died September 10, 1931, leaving surviving her, six daughters and one son. She had executed the will in question on November 7, 1925, more than six years prior to her death. Mrs. Lillian Riaski, one of the daughters, is the only contestant. The record is silent as to the amount or value of the estate. The will bequeaths the estate to two of the deceased's daughters, Mrs. Marian Hagan and Kate Rogers, and provides for the appointment of the son, Henry Droge, as executor. It appears that Henry Droge, the son of the decedent and brother of the contestant, went to the office of Henry K. Peterson, an attorney in Council Bluffs, on November 7, 1925, at the request of his mother, the decedent, and requested the attorney to prepare the will in controversy. Henry later procured the will from Mr. Peterson, drove to the home of his mother and brought her to his place of business in Council Bluffs, where the will was signed by the testatrix and two witnesses, D. W. Thayer and Harve Justice. One of the witnesses to the will, D. W. Thayer, died about five years before the will was offered for probate. At the time the will was executed, Mr. Thayer was operating an elevator in Council Bluffs for Henry Droge, and it was in the office of this elevator that the will was executed. Mr. Thayer was present in the office when Mrs. Droge signed the will, and he signed it at that time as a witness. The other witness, Mr. Justice, was in an elevator immediately across the street and about 100 feet from the office of Mr. Thayer. After the will was signed by the testatrix and the witness, Mr. Thayer, the son, Henry, called to Mr. Justice and when he came up to where Mrs. Droge and Mr. Thayer were, Henry told him that was his mother's will and she wanted him to sign it. This was in the presence of the testatrix and Mr. Thayer, and at that time Mr. Justice signed the will as a witness, in the presence of the testator and Mr. Thayer. Henry Droge testified that he saw Mr. Thayer sign the will as a witness, and, also, that he saw all of the parties sign the will at that time. This witness also testified that he read the will to his mother, the testatrix, exactly as it now appears, and that she could hear and understand English.
Harve Justice, who signed the will as a witness, testified that he had known Mrs. Droge for about two years; that on November 7, 1925, he spoke to her as she was sitting in an automobile in front of Henry Droge's office; that Henry had called to him and said he wanted him to sign his mother's will, and that he went over and signed it; that he did not see Mrs. Droge, nor the other witness sign the will, but that he knew that the signature of the other witness to the will was that of D. W. Thayer. Mrs. Droge was sitting in the automobile about 6 feet away from the door of the office and the window, both the door and window were open and Mrs. Droge could have seen him sign the will. “I do not know whether she looked that way or not. The signatures on the will when I signed it looked as though they had been freshly written. When Henry called me, he said, “Mother's will is here and she wants you to act as a witness.” This witness in answer to interrogatories propounded by the court, further testified as follows:”
Q. Did you say she looked at you when you signed it? A. Yes, sir.
Q. How do you know she could see you? You were in the office and she on the porch. A. The window was open.
Q. The window of the car? A. Yes, sir, and the office.
Q. It is practically all glass, and windows were open? A. Yes, sir.
Q. The car was just outside of the window? A. Yes sir.
Q. Between you and this little table you signed the will on, was just this scale beam? A. Yes, sir.
Q. And that was the only thing between you and her? A. Yes.
Q. Nothing to obstruct your view in seeing her, and she seeing you? A. No.
Q. The car door was open and the windows in the building were open, and you signed right there in her presence? A. Yes, sir.
Q. What, if anything, did Henry say after you came over there, in your presence? A. He said he wanted me to sign his mother's will.”
Mrs. Droge's hearing was good and she could understand ordinary conversation.
At the close of the testimony, disclosing the foregoing recited facts, the parties stipulated in open court that the jury be discharged, and that the question be submitted to the court as to whether or not the proof was sufficient to show that the will was duly executed. Accordingly the jury was discharged and later the court made a finding that the instrument in question was executed by the testatrix as her last will and testament on the date thereof, in the presence of Harve Justice and D. W. Thayer, and that said parties subscribed to the same as witnesses in the presence and at the request of the testatrix, and in the presence of each other; and that the testatrix was of sound and disposing mind and memory. And the court made an order admitting the will to probate, and appointing Henry F. Droge, as executor thereof. From such finding and order this appeal is prosecuted.
The appellant contends that the testatrix did not sign the will in the presence of the subscribing witnesses or acknowledge her signature thereto; and that the said witnesses did not sign at the request of the testatrix, and by reason of such facts the will was not shown to have been duly executed, and the court erred in admitting it to...
To continue reading
Request your trial