In re Huston's Estate

• Decision Date: 09 April 1947
• Docket Number: 46983.
• Citation: 27 N.W.2d 26,238 Iowa 297
• Parties: In re HUSTON'S ESTATE. PLOCK v. ALEXANDER et al.
• Court: Iowa Supreme Court

27 N.W.2d 26

238 Iowa 297

In re HUSTON'S ESTATE.

PLOCK v. ALEXANDER et al.

No. 46983.

Supreme Court of Iowa

April 9, 1947

Stuart & Stuart, of Chariton, and Hicklin & Hicklin, of Wapello, for appellant.

E S. Simpson, of Morning Sun, for appellee.

SMITH Justice.

Appellants are heirs of decedent, Eva L. Huston. Though also named as legatees under her will, their participation in her estate as such would not equal what it would be as heirs, hence their interest in establishing its invalidity. The appellee is executor of her will.

The will was admitted to probate without objection. No appeal was taken from the order admitting it and no claim is now made of any irregularity in the proceedings. Administration of the estate was commenced by appointment of an executor who has converted the assets (mostly real estate) into cash, preparatory to payment of legacies and distribution under the will.

In the course of administration the exutor caused to be served upon all heirs a notice under section 11007, subd. 3, Iowa Code 1939 now section 614.1, subd. 3, Code 1946, limiting to one year from date of such service, the right to commence action to set aside the order of probate. No such action was commenced though within the limitation period an abortive effort was made to commence one, which failed because of insufficient notice.

The executor in his final report submitted a proposed schedule of distribution in accordance with the terms of the will. To this appellants objected on the ground the testatrix was mentally incompetent and under undue influence when the will was executed. They argue here that a distribution under the terms of the will 'would (for that reason) be a wrongful and illegal distribution and not a proper accounting by the executor of the remainder assets of the estate. They insist they have the right to raise these issues in this way.

The executor's position is that original proceedings or appellate proceedings within the meaning of Sec. 633.38 of the Code 1946, formerly section 11882, Code 1939 'are exclusively the only methods of setting aside the order of probate of a will, or questioning the due execution of a will, which has been admitted to probate.'

I. The parties agree that determination of the case depends upon the meaning of the words 'due execution' in said code section 633.38 which provides: 'Wills * * * shall not be carried into effect until admitted to probate as hereinbefore provided, and such probate shall be conclusive as to the due execution thereof, until set aside by an original or appellate proceeding.'

Objectors contend that 'due execution' means merely the mechanical process of signing, witnessing and publishing; the executor claims the words include an assumption that testator was mentally competent and not under undue influence.

The case has been ably argued on both sides though perhaps too much emphasis has been placed upon the technical or abstract meaning of the two words and not enough upon the necessary implications of the language of the statute as a whole. The section clearly provides the only method by which a will may be 'carried into effect.' The order 'admitting the instrument to probate' is for the very purpose of making it effective as a will. This involves more than a mere finding that it has been properly signed and witnessed and the necessary formalities complied with in its preparation. When the purpose of the statute is considered it seems clear the words 'due execution' must be given a meaning broad enough to recognize that the order of probate constitutes an adjudication that the instrument is the will of decedent, not merely that formal requirements have been complied with.

When an instrument is offered for probate, proponent in effect asserts that it is decedent's will and asks the court to so find. He assumes the burden of proving compliance with certain technical, formal rules requiring signing, witnessing and publishing. He does not assume the burden of negativing testamentary incapacity and undue influence which, if present, would prevent the instrument from becoming decedent's will.

Mental capacity and freedom from undue influence are presumed. A contestant, who denies their existence or asserts any fact that would render the instrument ineffective as a will notwithstanding compliance with all formal requirements, assumes the burden of proof on such issue.

Mental incompetency and undue influence are in the nature of affirmative defenses that must be pleaded and proved by contestant. He may urge them at the probate hearing and if unsuccessful may appeal from the adverse decision; or he may allow the instrument to be probated without contest and later (within the statutory limitation period) may institute original proceedings to set aside the order of probate. But the instrument, once admitted to probate, is adjudged to be the will of decedent and it remains in effect as such 'until set aside by an original or appellate proceeding.' We cannot conceive that an adjudication, the very purpose of which is to permit the instrument to be carried into 'effect,' can be said not to include the elements necessary to that purpose. The words 'due execution' must imply every condition essential to an effective will.

The fact that mental incompetence and undue influence were not pleaded as defenses in the proceeding which resulted in admitting the will to probate is not material. A judgment determines not only matters in issue but also those which might or should have been alleged. Fulliam v. Drake, 105 Iowa 615, 619, 75 N.W. 479, and cases cited; Benedict v. Nielson, 204 Iowa 1373, 1377, 215 N.W. 658.

II. It must be admitted there are to be found in our opinions isolated statements which, removed from their context, seem to support objectors' contention. Two are heavily relied on in appellants' argument. In one, Fallon v. Chidester, 46 Iowa 588, 26 Am.Rep. 164, it is said:

'The probate of the will, under the statute * * * had the effect to establish its execution, and rendered it admissible as an instrument of evidence * * * and nothing more * * *. It did not establish the testamentary character of the instrument and give validity to a title based upon it. The effect of the will and its interpretation, whereon titles under it rested were not determined * * *. These were matters for adjudication when rights and property were claimed under the will.' (Italics as in appellants' brief.)

What was actually decided there however was that plaintiff, as heir of her father, having been born before he died but after his will was executed, could assert title to his real estate notwithstanding the terms of his will, probate of which had not been set aside. This was on the common law principle that the birth of a child after the will is made has the effect of revoking it.

To the argument of defendant that the probate of the will was conclusive and therefore the will was valid until set aside by proper proceeding, the opinion says: 'The premise of this proposition is correct but the conclusion is not admissible.' (Italics supplied.) Then follows the language first above quoted.

The real holding therefore was that plaintiff's contention depended, not on setting the will aside as invalid, but on determining its legal effect by interpretation in the light of the circumstances. We need not express an opinion as to the soundness of that reasoning or attempt to justify all the language used in expounding it. We cannot, for example, subscribe to the broad, unqualified dictum that the probate of the will 'did not establish the testamentary character of the instrument and give validity to a title based on it.'

It is sufficient perhaps to say the case does not furnish authority for a holding here that the order of probate was not an adjudication of testatrix' mental competency and freedom from undue influence--conclusive until set aside. Those are matters that necessarily inhere in the order.

Maloney v. Rose, 224 Iowa 1071, 277 N.W. 572, 573, also relied on by appellants, involved a controversy between the respective heirs of a husband and wife who had made mutual and reciprocal wills. Each owned separate property. The husband died first and under his will his property went to his wife. After the wife's death her will was admitted to probate but her executor in his final report took the position that her will was ineffective being the 'expired portion of mutual and reciprocal wills' and that her estate should be distributed to her heirs as intestate property.

The husband's heirs on the other hand, argued that as the wife's will gave everything to her husband, and as he predeceased her, they, as his heirs, were entitled to the property under the so-called 'anti-lapse' statute, section 11861, Code 1939, now section 633.16, Code 1946.

The controversy became transformed into and was tried as an equitable proceeding for construction of the wife's will. In passing on the appeal we used the language now relied on by defendants here: 'It has been the repeated pronouncement of this court that an order admitting a will to probate decides nothing but its due execution and publication. In re Tinsley's Will, 187 Iowa 23, 174 N.W. 4, 11 A.L.R. 826. The adjudicating admitting the will to probate being conclusive only of matters determined the...