In re Hulse

• Decision Date: 13 December 1879
• Citation: 3 N.W. 734,52 Iowa 662
• Parties: IN THE MATTER OF THE WILL OF RACHEL HULSE, DECEASED.
• Court: Iowa Supreme Court

52 Iowa 662

3 N.W. 734

IN THE MATTER OF THE WILL OF RACHEL HULSE, DECEASED.

Supreme Court of Iowa.

Filed December 13, 1879.

Appeal from Allamakee circuit court.

A will of deceased, dated April 28, 1877, was presented for probate, which was resisted, and another will, dated October 26, 1877, was presented as the latest disposition of intestate's property. The cause was sent to a referee who found, and so reported, that the last will was invalid, for the reason that at the time of its execution the testate was not possessed of a sound mind. The will first executed was found by the referee to have been properly executed, and he recommended its admission to probate. The report of the referee was confirmed, and the will dated April 28, 1877, was admitted to probate. The party contesting this will appeals. No appeal was taken from the decision as to the will of date October 26, 1877.Dayton & Dayton, for appellant.

Stoneman & Chapin, for appellee.

BECK, C. J.

1. The referee found and reported the facts in regard to the execution of the will to be as follows: “The evidence was all directed to the question raised by contestant's objection that the will was not properly executed and published. From the evidence I find the facts to be: That one or two days prior to the signing of said instrument, said Rachel Hulse requested one John S. Deremo to write her will; that in pursuance of said request said Deremo gave directions to his daughter, in the presence of said testatrix, to write the will in form as she should direct; that the testatrix then dictated the terms of the will as written down at the time by the daughter of said Deremo; that after it was written it was read over to Mrs. Hulse and she then expressed herself satisfied with it, and that it was in accordance with her wishes; that said Deremo took said will away with him, and returned with it a day or two afterwards, when she again expressed a desire to execute it; that said Deremo went for the two witnesses, who were neighbors, and who went to the residence of Mrs. Hulse; that in their presence Mrs. Hulse was asked by said Deremo if she desired to have the paper read; that she said she did not as she knew what it was; that her name was then written to the instrument, and she took the pen in her hand in the presence of the witnesses and made her mark, and the witnesses then in her presence signed the will as witnesses; that the testatrix did not state to the witnesses, nor in their presence, that it was her will; that she did not request said witnesses to sign it; that it was not stated at the time of its execution, by anybody, that it was her will; that the witnesses understood at the time that it was her will, having been told so previously by Mr. Deremo; that the witnesses on the stand recognize the instrument offered as the one they had signed as witnesses; that the testatrix was an old lady between 70 and 80 years of age, and...