In re Iwers' Estate

Decision Date21 June 1938
Docket Number44012.
Citation280 N.W. 579,225 Iowa 389
PartiesIn re IWERS' ESTATE. v. VOSS et al. TREIMER et al.
CourtIowa Supreme Court

Appeal from District Court, Cedar County; H. C. Ring, Judge.

This is a will contest. The jury returned a verdict for proponents. Contestants appeal.

Affirmed.

RICHARDS, J., dissenting.

J. R McManus, of Des Moines, J. C. France, of Tipton, W. A Hamilton, of Hartley, R. W. Cockshoot, of Atlantic, Ray A Potter, of Tipton, and Carl H. Mather and B. J. Maxwell, both of Tipton, for appellants.

G. P. Linville, of Cedar Rapids, M. C. Hamiel, of Tipton, and Chamberlin & Chamberlin, John A. Hornby, and George R. Fiala, all of Davenport, for appellees.

STIGER Chief Justice.

Henry Iwers, the testator, was a son of Hans and Caroline Iwers. Hans Iwers came to this country from Germany as a youth and settled in Cedar County where he engaged in the business of farming. The family consisted of Mr. and Mrs. Iwers, and their sons, William, John and Henry Iwers. None of the brothers married. They all lived together and accumulated 880 acres of land, residence properties, and a large amount of personal property. Through the death of his brothers, Henry became the owner of all the property accumulated by the family which was valued at his death at $375,000. On June 6, 1935, Mr. Iwers went to the office of his attorney, D. H. Snoke, where the will in question was drawn. It purports to be signed by Henry Iwers and witnessed by Mr. Snoke and Miss Geerts, stenographer for Mr. Snoke. The will gave all of the testator's property to Louis and Margaret Voss. Margaret Voss was a cousin of the testator.

Henry Iwers lived alone after the death of his brothers until January, 1936, when the proponents, Louis and Margaret Voss, who were then living on one of the Iwer's farms, moved into the home of Henry Iwers and lived with him until his death five months later.

The objections to the probate of the will relied on by contestants are that the instrument was not signed and executed by the decedent and was not witnessed and signed by the persons whose names appear thereon as witnesses in the manner required by the laws of the State of Iowa.

The jury found for the proponents and that the will offered for probate was the valid will of Henry Iwers.

At the time of the trial, Miss Geerts was the only surviving witness to the will. She testified to conversations occurring between the testator and Mr. Snoke and further testified that Iwers signed the will in the presence of the witnesses and that they, at his request, signed as witnesses in his presence. The contestants do not question the signature of Miss Geerts.

Two handwriting experts, Mr. Faxon and Mr. Scoville, witnesses for contestants, classified the signature of Mr. Iwers on the will as a traced forgery. Four lay witnesses for the contestants testified that the signature of D. H. Snoke appearing on the will was a simulation. Three handwriting experts, Mr. Gesell, Mr. Courtney, and Mr. Steen, and several lay witnesses testified the signatures of Iwers and Snoke appearing on the will were genuine.

I.

The first assignment of error relied on by appellants for reversal is that the surviving witness to the will of the decedent, Mary C. Geerts, was incompetent to testify concerning the making and execution of the purported will under Code Section 11257, known as the dead man's statute, and that said will should not have been admitted in evidence because its admission was based upon the evidence of an incompetent witness.

Miss Geerts was, at the time of the trial, the only surviving witness to the will.

In objecting to the competency of the witness, counsel for contestants stated:

" The proponents base their claim of right in this matter upon the testimony of this witness. My thought on that is this: ‘ It now appears that Snoke (the other witness to the will) is dead, therefore, to sustain the burden upon the proponents in this case they must necessarily depend upon the testimony of this witness, and therefore any rights they have in this matter will depend upon the testimony of this witness, and she is incompetent by reason of the dead man's statute" ’ .

The material portion of Section 11257 is as follows:

" 11257. Transaction with person since deceased. No party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title by assignment or otherwise, * * * shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination deceased, * * * against the * * * heir at law * * * of such deceased person * * *." (Italics supplied.)

The contention of contestants is that Mary C. Geerts testified, over objection, to the making and execution of the will, and that proponents base their claim of right to the admission of the instrument to probate solely upon her testimony, and they allege that because the testimony of Miss Geerts was necessary to establish the due execution of the will, under which proponents claim title to the property of decedent, it follows that Miss Geerts was the person from whom proponents derived an interest or title by assignment or otherwise. Contestants especially claim that while proponents did not derive their interest in the subject matter of the action by assignment from Miss Geerts they did derive title from Miss Geerts " otherwise", because she was indispensable to the establishment of the due execution of the will and therefore proponents derived title from her, not by assignment, but " otherwise" . In support of their position, contestants rely on the following loose phraseology contained in the case of McClanahan v. McClanahan, 129 Iowa 411, 105 N.W. 833, in which case the court purports to define the word otherwise found in Code Section 11257 as follows (page 834):

" It is not necessary that the interest should be derived by transfer or assignment. It may be ‘ otherwise,’ and, as used, that word is one of broad significance. It means that, if the right asserted by a claimant depends for its existence and validity upon a transaction between the deceased and a third person, the evidence of such third person shall not be allowed to prove the transaction."

The above language in the McClanahan Case is entirely too broad and if the definition of the word " otherwise" is correct, it would prevent to a substantial degree the proof of due execution of wills by the witnesses thereto, for in the great majority of cases, the right asserted by proponents of and beneficiaries under a will depends for its existence upon the transaction between the deceased and the witness or witnesses to his will. The construction found in the McClanahan Case is manifestly not in harmony with the express provisions of the statute which provide that in order to render a witness incompetent, the party to the action must derive his interest or title in the subject matter of the action from the witness. Manifestly the proponents did not derive their interest in the subject matter of the action from Miss Geerts or through any transaction with her. Whatever interest proponents have will be derived from the last will and testament of decedent.

We approve and affirm the construction given Code Section 11257 and especially that portion that is under special consideration here in the case of Stiles v. Breed, 151 Iowa 86, at page 97, 130 N.W. 376, at page 380, in which the court states:

" ‘ From, through or under’ has reference to the origin or devolution of property, and, unless some title to or interest therein has been derived by ‘ assignment or otherwise’ from the party adverse to the estate, the section has no application. By ‘ otherwise’ is meant in another manner or way, as by devise or descent. Contrary to what was intimated in McClanahan v. McClanahan, 129 Iowa 411, 105 N.W. 833, by express provision of the statute, the title or interest must have been derived ‘ from, through or under’ the witness, in order to render him incompetent."

Further expressing its disapproval of the language found in the case of McClanahan v. McClanahan, supra, the court, in the Stiles' Case, states:

" In McClanahan v. McClanahan, 129 Iowa 411, 105 N.W. 833, the witness held to have been incompetent was the person through whom the trust fund was acquired, and therefore not in point, though dicta may be found in the opinion contrary to the conclusion here reached. We are of opinion that the evidence of Thompson was admissible."

The conditions that make the statutory prohibition applicable are not present in this case and the trial court was right in ruling that Miss Geerts was a competent witness. See Stutzman v. Crain, 185 Iowa 514, 170 N.W. 806.

II.

Another error alleged is that the court erred in failing to instruct the jury upon the issue as to whether or not the purported will was duly and legally executed and witnessed in the manner required by law, which was one of the issues made by the pleadings, and which issue was separate and independent from the issue as to the genuineness of the signatures of the testator and the witness Snoke; that the proponents had the burden of proving that the instrument was executed in the manner required by law and that the court further erred in giving to the jury upon its own motion the last paragraph of Instruction No. 3, which, in effect, withdrew the issue of the formal execution of the will from the jury.

Contestants objected to the probate of the will of decedent upon the following ground:

" That said paper purporting to be said Last Will and Testament of Henry Iwers, deceased, was not signed and executed by said decedent or
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