In re Early's Estate
| Decision Date | 07 March 1944 |
| Docket Number | 46421. |
| Citation | 13 N.W.2d 328,234 Iowa 570 |
| Parties | In re EARLY'S ESTATE. MILLER et al. v. EARLY et al. |
| Court | Iowa Supreme Court |
Hobart E. Newton, of Stuart, for appellants.
R E. Duffield, of Guthrie Center, for appellees.
In September 1942, certain heirs at law of Josiah Early, deceased designating themselves as plaintiffs-proponents, petitioned the court asking that a certain written instrument dated March 13, 1915, and purporting to be the will of Josiah Early, be admitted to probate. The defendants-contestants, by way of answer, resisted the claim of the petitioners and alleged that said written instrument was not entitled to probate due to lack of proper attestation and lapse of time in being offered. The case was tried as a law action with the jury waived and on the 23d day of February, 1943, the lower court made an order sustaining the petition and admitting the will to probate. The defendants-contestants appeal.
I. Hereinafter in this opinion we will refer to the plaintiffs-proponents, as appellees, and the defendants-contestants as appellants.
The case presents a very unusual situation and some circumstances out of the ordinary. The will was made in 1915; Josiah Early died in February, 1917. At the trial both of the subscribing witnesses were dead. On April 3, 1917, the instrument sought to be admitted to probate was filed in the office of the clerk of the district court of Guthrie County, Iowa, and thereafter notice was given that the same would be probated on May 2, 1917. This notice and a proper return showing publication thereof were filed in the clerk's office on September 7, 1917. So far as the record shows no further proceedings were taken with regard to the instrument filed until the present action.
On the probate docket after the filing, there appears an undated notation, "withdrawn, May 9, 1917." There is no record to show how or by whom this entry was made, its purpose, or under what arrangement. There appears to be no order of court authorizing or approving said action. The offered instrument has since remained on file in the clerk's office.
About May 9 1917, Hannah E. Early, a daughter of said Josiah Early, a beneficiary under the purported instrument, and an appellant herein petitioned for letters of administration on the estate of Josiah Early, alleging that said Josiah Early died intestate and asking that she be appointed administratrix therein. Said application was verified by one J. H. Mount who subsequently acted as attorney for said administratrix. Said application was granted, Hannah E. Early was appointed administratrix and all the proceedings thereinafter had were as in an intestate estate. The estate has not been closed.
The instrument offered for probate as the will of Josiah Early opens with the following paragraph: "I, Josiah Early, residing in Panora, Iowa, and being of the age of 79 years and of sound mind and disposing memory, do hereby publish and declare this instrument as and for my last will and testament and hereby direct:" Then follow the various paragraphs of the will, in one of which (par. 2) there was devised to the widow, Sarah A. Early, and two daughters, Hannah Elizabeth Early and Flora Caroline Early, a life estate in and to the balance of his estate after the payment of the debts, obligations and expenses of the estate. The will closes with the following paragraph: "In witness whereof I have hereto subscribed my name at Panora, Iowa, on this 13th day of March, 1915." Josiah Early. Signed, E. E. Kellogg and J. R. Mount, witnesses.
As above stated, the appellants resisted the probate of the instrument on the grounds that (1) same is lacking in proper attestation; and (2) that by reason of the lapse of time it is not entitled to probate. Other matters in resistance were pleaded by appellants but are not urged in this appeal. The second ground, to-wit, lapse of time in offering said instrument for probate has not been urged or argued in this appeal.
When the case was reached for trial the following record was made:
It will be seen from the foregoing that the one issued in the case before the lower court was whether or not the proffered instrument was entitled to be probated as the will of Josiah Early. The burden of proof rested upon the appellees to establish that fact. The action being at law and having been tried to the court with the jury waived, the finding of the court is equivalent to the verdict of the jury.
II. It will be noted that the will does not have an attestation clause. It purports to be signed by Josiah Early and names as its witnesses, J. R. Mount and E. E. Kellogg. While it is customary and is considered the better practice to use an attestation clause in the execution of a will, still the statute does not so require. Section 11852, Code 1939. Hull v. Hull, 117 Iowa 738, 89 N.W. 979; Nixon v. Snellbaker, 155 Iowa 390, 136 N.W. 223. We do not understand appellants to seriously argue that the lack of an attestation clause will, in and of itself, prevent probate. As both witnesses were deceased at the time of trial, it was proper to show that they had signed the instrument by other evidence. In re Allison's Estate, 104 Iowa 130, 73 N.W. 489; Scott v. Hawk, 105 Iowa 467, 75 N.W. 368. In Lawson's Rights, Remedies and Practice, Sec. 3198, the text is as follows: "Where the witnesses are all dead *** proof of the handwriting of the witnesses and of the attestation clause may be given."
20 Am.Jur. Sec. 742. In the same volume (Sec. 743) it is said that it is...
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