In re Hull's Will

• Decision Date: 09 April 1902
• Citation: 89 N.W. 979,117 Iowa 738
• Parties: IN THE MATTER OF THE PROBATE OF THE WILL OF MARGARET A. HULL, Deceased, HORATIO HULL, Proponent, v. A. H. HULL et al, Contestants, Appellants
• Court: Iowa Supreme Court

89 N.W. 979

117 Iowa 738

IN THE MATTER OF THE PROBATE OF THE WILL OF MARGARET A. HULL, Deceased, HORATIO HULL, Proponent, v. A. H. HULL et al, Contestants, Appellants

Supreme Court of Iowa, Des Moines

April 9, 1902

Appeal from Washington District Court.--HON. W. G. CLEMENTS, Judge.

PROCEEDING for the probate of a will. The contest was on the ground that the will was not duly executed and witnessed, and that the testatrix had not sufficient mental capacity. Verdict and judgment for the proponent. Contestants appeal. -- Reversed.

REVERSED.

C. J Wilson, Ranck & Bradley and Remley & Ney for appellants.

D. W Hamilton and H. M. Eicher for appellee.

OPINION

MCCLAIN, J.

The will purports to be witnessed by two witnesses, Coffee and Sitler. One Smith, who is shown to have been a notary public, and the person who drew the will at the request of testatrix, affixed an acknowledgment thereto, in which he recited that testatrix and the two witnesses were personally known to him to be the identical persons whose names were affixed to the instrument, and that they came personally before him on that date and acknowledged the same to be their voluntary act and deed. In view of the fact that there seems to be some doubt under the evidence whether there was a sufficient witnessing by Sitler, it has been deemed important by counsel to argue the question whether the affixing of the certificate of acknowledgment by Smith as notary public made him a witness to the will. It seems to be settled that if the testator asks a person who is competent to be a witness, but also is competent to take acknowledgments, to attest the will, and the person thus requested, instead of attesting the will in the usual way as a witness, affixes his certificate of acknowledgment thereto, the will is nevertheless sufficiently witnessed by him. The important fact is whether he signed as witness under circumstances rendering his attestation proper. Payne v. Payne, 54 Ark. 415 (16 S.W. 1); Murray v. Murphy, 39 Miss. 214; Franks v. Chapman, 64 Tex. 159. The attesting clause is not essential to the sufficiency of the attestation, however important it may be in furnishing proof that the testator declared the instrument to be his act, and that the witnesses signed it in his presence. Indeed, no attestation clause whatever is essential. Robinson v. Brewster, 140 Ill. 649 (30 N.E. 683, 33 Am. St. Rep. 265.) But the difficulty about treating Smith as a witness is that it does not clearly appear that he was asked to witness the execution of the will, or that he affixed the acknowledgment with the knowledge of the testatrix that he was signing it as a witness. The attestation of the will signed by Coffee and Sitler sufficiently recites the facts necessary to show the publication of the will; that is, the declaration by the testatrix that it was her act, and the attestation by the witnesses in her presence at her request. Coffee was out of the state at the time of the trial, and could not be procured as a witness, and it was sufficiently shown that his signature was genuine. Therefore the witnessing by him was prima facie sufficient. In re Allison's Estate, 104 Iowa 130, 73 N.W. 489; Luper v. Werts, (Or.) 19 Ore. 122, 23 P. 850; 1 Underhill Wills 288. Sitler was called as a witness and testified as to the transaction and as to his signature to the attestation clause. Therefore there was an attestation clause showing the requisite facts, signed by two witnesses, and this is prima facie sufficient. 1 Underhill Wills 276; Bigelow, Jarman Wills, 57; In re Meurer's Will, 44 Wis. 392, (28 Am. Rep. 591). But the proof furnished by a proper attestation clause, duly signed, is not conclusive. It may be contradicted by evidence to show that the actual publication was not sufficient, and, on the other hand, though the attesting witnesses when called are unable to state the necessary facts, those facts may be made out by the testimony of other witnesses. Haynes v. Haynes, 33 Ohio St. 598, 612 (31 Am. Rep. 579); Scott v. Hawks, 107 Iowa 723, 77 N.W. 467. In re Allison's Estate, 104 Iowa 130, 73 N.W. 489; Simmons v. Leonard, 91 Tenn. 183 (18 S.W. 280). The result of the examination of Smith and Sitler as witnesses with reference to what actually took place is not very satisfactory. Neither Coffee nor Sitler seems to have had any conversation with testatrix whatever, nor to have heard any statements made by her with reference to whether the paper signed by them was executed by her, or as to whether she desired them to attest it. The request that they sign as witnesses was made by Smith, and according to his testimony it was so made by the direction of the testatrix, but whether it was made in such way that testatrix heard and understood it, or whether she expressed to witnesses by sign any approval of the request, may be said to be in doubt. It may also be said that it is doubtful whether she understood that Coffee and Sitler were witnessing the will. There were lacking the formality and usual precautions which should accompany such a solemn and important act.

The law as to what is a sufficient publication and attestation does not seem to be in serious doubt. In the absence of express statutory provision,--and there is none in this state, save that the will is to be witnessed by two witnesses (Code, section 3274),--it seems to be sufficient that in the presence of the testator and at his request a third person asked the witnesses to attest the execution of the will, and that such request was, in the presence of the witnesses, approved of by some sign or act on the part of the testator, and that the witnesses, with the knowledge of the testator, and in response to such request, signed their names. Bates v. Officer, 70 Iowa 343, 30 N.W. 608; In re Hulse's Will, 52 Iowa 662, 3 N.W. 734; Appeal of Canada, 47 Conn. 450; Gilbert v. Knox, 52 N.Y. 125; Denny v. Pinney's Heirs, 60 Vt. 524 (12 A. 108). Indeed it is settled that not even an act or motion indicating acquiescence by the testator in the request to the witnesses is necessary, where it is made in his presence, and he knows that the witnesses are signing in response to such request, and makes no objection. Under such circumstances his silence is a sufficient indication that the request is by his authority. In re Nelson's Will, 141 N.Y. 152 (36 N.E. 3); Harp v. Parr, 168 Ill. 459, 474 (48 N.E. 113); Bundy v. McKnight, 48 Ind. 502; Inglesant v. Inglesant, L. R. 3 Prob. Div. 172.

We do not agree with the contention made for contestants that the witnesses must attest with reference to one and the same act or declaration of the testator. No authorities are cited in support of such a proposition. It seems to be well settled that, in the absence of statute, it is not requisite that the attestation by the two witnesses be in each other's presence; and therefore it is evident that they cannot always be witnesses of exactly the same act or declaration on the part of the testator indicating his acknowledgment of the instrument. Bigelow, Jarman Wills, 53; Schouler, Wills, section 327. The burden of proof, however, as to due execution and attestation is on the proponents. In re Ludwig's Estate, (Minn.) 81 N.W. 758; In re Mackay's Will, 110 N.Y. 611 (18 N.E. 433, 1 L. R. A. 491, 6 Am. St. Rep. 409). And in states where, as in this state, the question whether the instrument should be probated is one as to which the parties are entitled to a jury trial (Code, section 3283), the sufficiency of the evidence is for the jury. In the cases of In re Nelson's Will, supra, and Inglesant v. Inglesant, supra, and perhaps in other cases which we have cited, the court found, from the conflicting evidence, similar to that which is found in the record in the case before us, that the showing was sufficient; but in the jurisdictions in which these cases were decided there was no requirement that such questions of fact be determined by a jury. If these questions of facts had in this case been submitted to a jury, and the verdict had been for proponent, we might have thought the evidence sufficient to sustain the verdict; but we are not willing to say that the evidence as it appears in this record would sustain no other conclusion. Therefore the trial court erred in charging the jury that the will was sufficiently executed and attested, provided they should find the testatrix to have been of sound mind.

Objection was made to the introduction of the will in evidence, on the ground that a clause thereof, naming an alternative executor in case the executor named should be dead, had been altered after the will was executed and witnessed. The court,...