In re Duffy's Estate

• Decision Date: 14 May 1940
• Docket Number: 45138.
• Citation: 292 N.W. 165,228 Iowa 426
• Parties: In re DUFFY'S ESTATE.
• Court: Iowa Supreme Court

292 N.W. 165

228 Iowa 426

In re DUFFY'S ESTATE.

No. 45138.

Supreme Court of Iowa.

May 14, 1940

MITCHELL, J., dissenting.

Appeal from District Court, Black Hawk County; Ralph W. Hasner Judge.

This is a proceeding to probate the last will and testament and codicil thereto of Hugh Duffy. The contestant filed objections to the probate, to which objections the proponent demurred. The demurrer having been sustained, and the contestant having elected to stand on the ruling, judgment was entered admitting the testamentary documents to probate. The contestant has appealed from the judgment and all adverse rulings.

Reversed and remanded.

McCoy & Beecher, of Waterloo, and W. John Pollock, of Plover, for contestant.

Ray R Reed, of Waterloo, for appellee.

BLISS Justice.

Hugh Duffy died leaving a last will and testament and a codicil thereto, by which he bequeathed and devised his property equally among his thirteen children, except that he left the share of his son George Duffy in trust for him under such conditions that it could not be subjected to the payment of his debts. The estate consisted of personal property, and of real estate in Black Hawk and Buchanan Counties. Prior to the death of the testator, the Fairbank State Bank had obtained judgments against George Duffy in the approximate sum of $8,000. The will and codicil were filed for probate in the office of the clerk of the District Court of Black Hawk County, and the time for hearing proof of the instruments was fixed by the court. Before the day of the hearing the Fairbank State Bank of Fairbank, Iowa, filed objections to the probate of the will and codicil, stating, in substance, that it shows to the court that it is a banking corporation organized and doing business under the laws of Iowa, and is the owner of valid judgments against George Duffy, a son and heir of the testator, in the sum of $7,930.18; that the testator died seized of real estate in the counties of Black Hawk and Buchanan, and said judgments are of record in said counties and constitute a lien against any real estate that the said George Duffy would inherit as an heir of said testator; that the said bank objects to the probate of the alleged will and codicil of Hugh Duffy upon the ground and for the reason that at the times of the execution of the alleged will and codicil the said Hugh Duffy was of unsound mind and incapable of making a will. Dismissal of the petition for probate and denial of probate were prayed.

To these objections the following demurrer was filed:

" Comes now Chas. L. Duffy, proponent of the Will, heir at law and the Executor named in said Will of Hugh Duffy, deceased, and shows to the court:

That the proponent of said Will demurs to the objections filed herein by the contestant on the following grounds:

1. That the facts stated in the objections do not entitle the contestant to the relief demanded therein for the reason that the contestant is not a party with an interest in the estate of the deceased herein.

2. That the contestant claiming as a judgment creditor of George Duffy, one of the heirs at law of the deceased herein, is not a party with an interest in the estate of the deceased herein.

3. That the contestant claiming as a judgment creditor of George Duffy, one of the heirs at law but not one of the direct beneficiaries under the Will of the deceased herein, has acquired no right or property of the said George Duffy in the estate of the deceased herein.

4. That the contestant claiming as a judgment creditor of the said George Duffy, one of the heirs at law of the deceased herein, as such, acquired no more than a lien on whatever interest the said George Duffy may have in the estate of the deceased and that such lien does not constitute a right or title to whatever interest the said George Duffy may have in the estate of the deceased and does not confer or constitute in the contestant an interest in the estate of the deceased herein."

The contestant stood upon the ruling sustaining the demurrer and judgment was entered probating the will and codicil.

The appeal comes to us on an assignment of error stated by the appellant, as follows: " The first proposition relied upon by the appellant for reversal is that the court erred in sustaining the Demurrer filed to the objections to the probate of the will and codicil of Hugh Duffy, entering judgment dismissing the objections and in admitting the instruments to probate as the Last Will and Testament and codicil of Hugh Duffy, on the ground and for the reason that the Fairbank State Bank, a judgment creditor of George Duffy, a son and one of the heirs of Hugh Duffy, had such a beneficial interest in the estate, if there had been no will, as entitled said judgment creditor to contest the validity of the will and codicil which it is claimed was executed by the deceased."

The precise question submitted to us for determination, by this appeal, has never been before us prior to this time. A somewhat similar question was involved in Burk v. Morain, 223 Iowa 399, 272 N.W. 441, 112 A.L.R. 79.But in that case an action was brought in equity by the assignee of a deed of assignment executed by the son and potential heir of his mother, who was then living, conveying his prospective distributive share in her estate, to set aside the probate of a will and to declare the same void because of the testamentary incompetence of the testatrix and the undue influence exerted upon her. By her will she left the property assigned to others than her son. The defendants filed a motion to dismiss upon the ground that the action was not brought by an heir at law or person entitled to inherit from the testatrix, but was brought by an alleged creditor of the son, who, as such, had no right in law or equity to contest the will. The motion was sustained and the ruling was affirmed by this court, upon the ground that all the assignee received under the assignment from the son was a contract that the latter would assign his interest in the estate if and whenever he received it as heir at law, which contract the assignee could then enforce by a suit in equity. There is but little authority on that question other than our own case.

I.

It is generally recognized by the courts and other authorities that no one has any standing to object to the probate of a will, or to bring any action to set aside its probate, unless he has an interest in property which the testator owned at his death and attempted to dispose of by will.

It is not sufficient that the interest be a mere sentimental one, but it must be an interest which is beneficial to the objector in a pecuniary way. A will contest, as we now know it, was unknown to the common law, notwithstanding the right to dispose of property at death was known to the Egyptians 3,000 years before Christ, and that the Code of Hammurabi, King of Babylon, made provision for both testate and intestate succession. There can be little doubt that testamentary disposition was known to the Assynians, the Hebrew (Genesis 48-22), the Greeks (Plutarch's Life of Solon), and the Romans (Laws of the Twelve Tables). But it was not until the Justinian Code (A.D. 534) that wills resembling the modern will were evolved. It was from the Roman law that the ecclesiastical courts of England drew heavily on the subject of testaments. See Maine's Ancient Law; Reppy & Thompson, History of Wills, 3. For many centuries in England, the term " testament" referred only to a disposition of personal property, and the term " will" was applied only to such disposition of real estate. The ecclesiastical courts had jurisdiction over the former, and the civil courts, over the latter. Probate of testaments was by the " common form", practically without notice, or by the " solemn form", by which it was necessary to notify next of kin. The ecclesiastical courts might probate a will covering both personal and real property, but the authenticity of the probate respecting the real estate was not recognized by the civil courts. A special proceeding to contest a will was unknown to the common law, because proceedings to probate a will of real estate were unknown to the common law. On the death of such a testator, the devisee procured the will and went into possession of the land. If his title was questioned by partition, ejectment, or other proceeding in court, he defended by offering the will in evidence as a muniment of title, and proved its execution as he would a deed. Thus it happened that in one court his will might be sustained, and in another court, denied. In re Baker's Estate, 170 Cal. 578, 150 P. 989; Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258, 98 N.E. 177; Davies v. Leete, 111 Ky. 659, 64 S.W. 441; In re Dana's Est., 138 Fla. 676, 190 So. 52.Courts of chancery repeatedly held that comprehensive as was their jurisdiction, it did not include the power to validate or invalidate wills. In re Baker's Estate, supra, Gaines v. Fuentes, 92 U.S. 10, 23 L.Ed. 524.Statutes covering the subject matter were later enacted, and since many of these were enacted prior to the colonization of this country by the English, they became part of the common law of this country.

In, perhaps, most of the states of this country, " any person interested" or words of similar import, is the language of the various statutes with reference to those who are entitled to object to the probate of a will, or to bring action to set aside the probate.

There is no statutory provisions in Iowa stating who may contest the probate of a will, or attack an order of probate. In fact, the statutory provisions in this state respecting such proceedings are rather meager. There are but three Code sections touching the matter: Section 11864, which provides that, " when the...