In re Longer's Estate

• Citation: 78 N.W. 834,108 Iowa 34
• Parties: IN THE MATTER OF THE ESTATE OF WENZEL LONGER, Deceased
• Decision Date: 07 April 1899
• Court: United States State Supreme Court of Iowa

78 N.W. 834

108 Iowa 34

IN THE MATTER OF THE ESTATE OF WENZEL LONGER, Deceased

Supreme Court of Iowa, Des Moines

April 7, 1899

Appeal from Washington District Court.--HON. D. RYAN, Judge.

THIS is a proceeding to secure the probate of an instrument purporting to be the will of Wenzel Longer, deceased. The probate was contested and refused, and from such judgment the proponents appeal.

Reversed.

C. J Wilson and H. M. Eicher for appellants.

No appearance for appellee.

OPINION

WATERMAN, J.

The instrument offered for probate was as follows:

"February 17, 1897. I agree to will to Rosie Hinek four hundred and fifty dollars $ 450.00. Jim Longer a house and lot in Riverside. Any Marek two hundred and fifty dollars $ 250.00. Barbara Fouchek three hundred dollars $ 300.00. Mary Hotz five dollars $ 5.00. Jose Hinek one hundred and fifty dollars $ 150.00. Fannie Parizk five hundred dollars $ 500.00. And what remains to Jim Longer's children. The funeral expensis is to be paid by Jim Longer.

"Witnesses

Vaclav Longer.

"Justice of the Peace

"Ed Stackman.

"Jozef Rabas."

Among other objections urged by the contestants, it was said that the instrument is not in fact a will. In addition to the testimony relating to its execution, the court received evidence as to the intent and purpose of Longer in executing it, and made the following finding: "(3) At the time of the signing, subscribing, and execution of said instrument as aforesaid, said Vaclav Longer was of sound and disposing mind; and said instrument was voluntarily executed by him with knowledge of its provisions, without any undue influence or fraud exerted upon him in the execution of the same. (4) The parol evidence introduced shows that at the time of the signing and execution of said instrument, Exhibit A, the said Vaclav Longer thought he was thereby executing his last will and testament, and intended the said instrument, Exhibit A at the time of its execution, to be and constitute his last will and testament. (5) At the time and place of the execution of said instrument, the said Vaclav Longer requested the witnesses thereto, to-wit, Ed. Stackman and Jozef Rabas, to subscribe their names to said instrument as witnesses to his will; and in obedience to said request, properly and correctly communicated, the said witnesses did at said time and place properly subscribe their names to said instrument, and witnessed the same, as the last will and testament of the said Vaclav Longer. (6) The said instrument, Exhibit A, was in every manner and form executed and witnessed in full and complete compliance with the provisions for the execution, signing, and witnessing of wills in the state of Iowa, except as hereinafter stated: Said Vaclav Longer died on or about the 28th day of February, 1898, near Lone Tree, in Johnson county, Iowa, and said instrument, Exhibit A, was executed at the same place. (7) At the time of the death of said Vaclav Longer, he was upwards of sixty years old; and he was the owner of a house and lot, located in Riverside, in Washington county, Iowa, and about two thousand dollars ($ 2,000) in personal property. (8) Said Vaclav Longer, deceased, made no effort to execute a will, except the execution of Exhibit A, offered in evidence in the trial of this cause; and said Vaclav Longer and James Longer are one and the same person. (9) The court further finds that the said instrument, Exhibit A, is not sufficient in its terms to constitute a will or testament, in that the same has no expression or...