In re Harter's Estate

• Decision Date: 22 October 1940
• Docket Number: 45073.
• Citation: 294 N.W. 357,229 Iowa 238
• Parties: In re HARTER'S ESTATE. v. HAY et al. BEARD et al.
• Court: Iowa Supreme Court

294 N.W. 357

229 Iowa 238

In re HARTER'S ESTATE.

BEARD et al. v. HAY et al.

No. 45073.

Supreme Court of Iowa.

October 22, 1940

Appeal from District Court, Jasper County; J. G. Patterson, Judge.

Proceedings for the admission to probate of an instrument purporting to be a will. Contestants resisted the probate of the instrument on the ground that it had not been formally executed and witnessed as required by statute. The court found for the proponents and admitted the instrument to probate as the will of the decedent. Contestants appeal.

Reversed.

Cross & Hamill, of Newton, for appellants.

M. R Hammer, Jr., of Newton, for appellees.

MILLER, Justice.

The issue presented by this appeal is a question of law. The facts are not in dispute and the issue is sharply drawn.

Sometime prior to October 14, 1938, the decedent, Stillwell E. Harter consulted with one J. H. Hahn, a realtor, regarding the drawing of a will and advised Hahn the provisions he desired that it should contain. Hahn undertook to prepare the will and delivered the instrument to Harter on October 14, 1938. At the time it was delivered, there was a blank space for the naming of an executor, a blank space for the signing of the instrument by decedent and two blank spaces for the signature of witnesses. When the instrument was offered for probate, it was fully executed. It was prepared on two pages. Page 1 is as follows:

" Will

I Stillwell E. Harter, a resident of the Town of Mingo, Jasper County, Iowa, being a person of full age and of sound mind and memory, do hereby make, publish and declare the following to be my Last Will and Testament hereby revoking all former wills and codicils by me at any time heretofore made, and state as follows:

I.

It is my wish and desire that all past debts, including my funeral expenses, and the expense of my last sickness be paid as soon as possible after my death.

II.

I do hereby devise and bequeath to Willis Beard, my son-in-law $1.00; and to my daughter, Mrs. Floy Hay (if she is living, otherwise to her children her share in equal parts), my son Dale Harter, and my daughter, Mrs. Myrna Adkins, each one-third of all my property, both real and personal, and of every kind and nature whatsoever, of which I may die seized, they to have and to hold the same in fee simple for themselves, their heirs, executors, administrators, or assigns forever.

III.

And I do hereby nominate and appoint J. H. Hahn as sole Executor of this my Last Will and Testament, not to be required to give bonds to qualify as such Executor.

Witness my hand at Mingo, Iowa, this 14th day of October, A.D. 1938.

Stillwell E. Harter"

On page 2 of the instrument appears the following:

" State of Iowa, Jasper County - ss.

We do hereby certify that on this 14th day of October, 1938, at Mingo in Jasper County, Iowa, Stillwell E. Harter, to us personally known, did, in our presence, sign the foregoing instrument and declare the same to be his Last Will and Testament and we, at his request and in his presence, and in the presence of each other, do hereunto subscribe our names as witnesses thereto.

Lloyd Elrod

Charles C. Turner"

There was competent evidence, which is not disputed, that the signature appearing on the will is the signature of the decedent. However, no witness testifies that he actually saw the instrument signed by decedent. Shortly after the instrument had been delivered to him, Harter was observed at a desk in the stockroom of his garage with the instrument before him and a pen and ink in hand. This witness did not see him actually write upon the instrument. Shortly thereafter Harter got up and went out with the instrument in his hand. He contacted Lloyd Elrod and Charles C. Turner, told them he had prepared his will and that he would like to have them sign it as witnesses. In presenting the instrument to them for their signatures, page 1 was folded back so that it partly obscured the attestation clause, but left sufficient space for the witnesses to sign in the places prepared for their signatures. They each signed the instrument in the presence of each other and in the presence of the decedent. However, he said nothing to them about having previously signed the instrument, did not exhibit his signature to them, they did not see his signature, nor did they know whether or not it had been signed by him before they affixed their signatures thereto as witnesses.

The cause was tried to the court without a jury, and, at the close of the evidence, findings of fact and conclusions of law were made. The findings of fact were as follows:

" 1. The instrument in question bears the genuine signature of the Decedent Stillwell E. Harter, and was in fact signed by him as and for his Last Will and Testament.

2. It also bears the genuine signatures of Lloyd Elrod and Charles C. Turner who signed it as witnesses thereto at the request of the Decedent, in his presence and in the presence of each other.

3. The decedent did not sign the instrument in the presence of witnesses. Whether he signed it before or after they did does not appear from the evidence, and is not shown except by the presumption referred to under ‘ Conclusions of Law.'

4. In requesting Elrod and Turner to sign the instrument in controversy as witnesses, Decedent produced the instrument, and stated to them that he had prepared his Will and that he wanted them to sign it as witnesses; but he did not exhibit to them his signature thereon. He unfolded only the last sheet upon which the attestation clause appears, and below which they signed. As the paper was placed before them, they did not and could not see his signature where it now appears and do not know whether it was on the paper or not at the time they signed. He did not refer specifically to the signature nor adopt it in any way except to say that he had prepared his Will and desired them to witness it."

The conclusions of law were as follows:

" 1. Since the paper was in fact signed by the Decedent as and for his Will, it is conclusively presumed that he signed it previous to the signing thereof by the witnesses.

2. Under the facts found, the instrument was sufficiently witnessed by Lloyd Elrod and Charles C. Turner as competent witnesses thereto.

3. The instrument in controversy is accordingly entitled to admission to probate as the Last Will and Testament of Stillwell E. Harter, Deceased."

Pursuant to the foregoing findings of fact and conclusions of law, the court ordered and adjudged that the instrument be admitted to probate as the last will and testament of Stillwell E. Harter, Deceased, and, pursuant to said instrument, appointed J. H. Hahn executor to serve without bond. Exception was granted to the contestants and they appeal.

I.

Appellants' first proposition challenges the correctness of the court's conclusion of law No. 1. As above pointed out, in the finding of fact No. 3, the court determined that the decedent did not sign the instrument in the presence of the witnesses, and whether he signed it before or after they did does not appear from the evidence and is shown only by the presumption stated in conclusion of law No. 1, namely, that, since the paper was in fact signed by decedent as and for his will, it is conclusively presumed that he signed it previous to the signing thereof by the witnesses. This conclusion of law appears to have been prompted by the positive language used by us in Nixon v. Snellbaker, 155 Iowa 390, 393, 136 N.W. 223.Appellants seek to distinguish our holding in the Nixon case because of the difference in the facts shown by the record therein as contrasted with the record herein. While appellants make a very persuasive argument, we deem it unnecessary to pass upon their contentions because, even were we to grant that the court was warranted in presuming that Harter signed the instrument previous to the signing thereof by the witnesses, nevertheless, he failed to have the instrument properly witnessed in compliance with the statute.

II.

Appellants' second proposition challenges the conclusion of law No. 2 wherein the court held that, under the facts found, the instrument was sufficiently witnessed. We are disposed to the view and hold that appellants' contentions in this regard are well grounded.

Section 11850 of the Code 1935 provides for verbal wills in the event that the estate consists of personal property to the value of $300. Section 11852 of the Code 1935 provides that all other wills " to be valid, must be in writing, signed by the testator, * * * and witnessed by two competent persons." It is conceded that the instrument involved herein, to be valid, must meet the requirements of Section 11852. The question presented for our consideration is the interpretation to be given the words " and witnessed by two competent persons."

In the court's finding of fact No. 4, the court determined that, when the paper was placed before the witnesses, they did not and could not see Harter's signature where it now appears and they did not know whether it was on the paper or not at the time they signed it; Harter did not refer specifically to the signature nor adopt it in any way except to say that he had prepared his will and desired them to witness it. This finding of fact finds abundant support in the record and is not challenged by appellees. The question is whether, under such facts, the court was warranted in finding, as a conclusion of law, that the instrument was sufficiently witnessed. We hold that the court erred in so finding.

This court has not heretofore decided the exact proposition here presented to us. The decisions from other jurisdictions are in conflict and we are faced with the necessity of determining which rule appears to be in accord with the...