In re Mathews' Estate
| Decision Date | 14 December 1943 |
| Docket Number | 46364. |
| Citation | 12 N.W.2d 162,234 Iowa 188 |
| Parties | In re MATHEWS' ESTATE. |
| Court | Iowa Supreme Court |
T. J. Mahoney, of Boone, and Frank Porter, of Ogden, for appellees-proponents.
Paul E. Hellwege, Leonard S. Nelson, and Dyer, Jordan, & Dyer all of Boone, for appellants-contestants.
The trial court admitted an instrument to probate that reads as follows:
"Affirmation of Gift
To Whom It May Concern.
Be it known by these presents that I, Carrie Mathews of Pilot Mound Boone County, State of Iowa, by my own initiative and free will, do hereby give to my brother, David Adamson of Boone County, Iowa, in addition to gifts already made to him in the past, the sum of Five and 00/100 Dollars ($5.00) and do hereby give to my three brothers, Joseph Adamson, Andrew Adamson and Charles Adamson, all of Boone County, Iowa an equal share in the remainder of my property valued at about Six Thousand and 00/100 Dollars ($6,000.00) and consisting of bonds, mortgages, moneys, accrued and accruing interest, bank accounts, accounts, etc., all of which is to be their property to have and to hold forever.
Furthermore I do hereby order and direct that all parties who are indebted to me on the above valuable papers or otherwise shall pay and deliver to my three brothers Joseph Adamson, Andrew Adamson and Charles Adamson, or to their heirs, assigns, executors or administrators the several sums as they become due or payable.
In Testimony to the foregoing gifts, I hereunto set my hand and seal at Pilot Mound, Iowa, this third day of August, 1926.
Contestants really presented but two questions: First, the instrument is not testamentary in character; and second, it was not legally executed because the decedent is not shown to have known its contents and to have requested the witnesses to act as witnesses to a will. Various considerations and arguments are urged but the foregoing are the ultimate ones relied on.
The witnesses to the instrument were the cashier and assistant cashier of a bank. They testify that Carrie Mathews (hereinafter for convenience referred to as testatrix) signed it in their presence and that they signed it in hers. Corey says: On cross-examination he testifies he thinks the brother who came into the bank with her said substantially: "Will you act as a witness to Carrie's signature?" It seems probable, though not entirely clear, that the brother was present in the directors' room of the bank when the signing took place. Corey called the other witness in from the front room to sign as the second witness.
There is no evidence showing who prepared the instrument. The testatrix made no statement as to its nature or as to her understanding of its purpose. The record indicates she was a woman of average intelligence and of sound mind. There is no issue of undue influence or mental incompetence, though two or three years later (March 20, 1929) she was adjudged insane and she thereafter remained under guardianship until her death, August 4, 1941, at the age of 83 years.
She was a childless widow. Her brother, Joseph Adamson, was her first guardian. Upon his death his son succeeded him and later became the administrator of her estate and the proponent and appellee herein.
There is no clear evidence showing what was done with the instrument immediately after it was signed. It was among her effects that came into the hands of appellee as guardian. After his appointment as administrator he filed it and another document (hereinafter referred to) and asked the court to determine whether either should be probated as the will of decedent. Subsequently (after some evidence was taken) he filed a formal petition for the probate of the "Affirmation of Gift."
The other document referred to was also among the effects that came into the guardian's hands. It was as follows:
I, Carrie M. Mathews of Denver, Colo., being in good health, sound in both mind and body, in consideration of blood relationship and family ties, and being a widow and having no living children, do hereby give and bequeath to my five Brothers, John, David, Joseph, Andrew & Charles Adamson, all now of Pilot Mound, Iowa, or to those Brothers who are surviving at the time of decease, ALL of my personal property and belongings of whatsoever name and character, including money on deposit & Liberty Bonds, Numbered 4,050,315-6,-Nos., 94804, 94864-65-66-67-68; also one, No. 2,668,540, now in the Vaults of the American Bank & Trust Company of Denver, Colorado.
Signed & witnessed this 20th. day of December, A.D. 1920.
Carrie M. Mathews (Seal)
We, the undersigned witnesses, do affirm that we saw the testatrix of this instrument, Mrs. Carrie M. Mathews, sign her name hereto in the presence of both of us and also we did sign the same in her presence and in the presence of both of us sign the same in her presence and in the presence of each other, this 20th. day of December, A.D., 1920.
At the time this earlier instrument purports to have been executed testatrix was a resident of Denver, Colo. It does not appear when she thereafter became a resident of Boone County, Iowa.
The appellee made good faith, but fruitless, efforts to find the witnesses to this earlier instrument. Their identity and whereabouts are unknown in the record. However, appellee and one of appellants testify to having knowledge of testatrix' signature and their belief that her signature to the so-called "Will" is genuine. Its execution is not otherwise proved in the record except for the attestation clause. There is, of course, no evidence as to the genuineness of the witnesses' signatures.
It will be observed the earlier instrument purported to bequeath the property therein referred to to testatrix' five brothers (naming them) "or to those Brothers who are surviving at the time of decease." Only her brother Charles survived her and he died about a week before this trial commenced. The administrator of his estate and his widow and children are the appellants here who objected to the probate of the "Affirmation of Gift." Under it they are entitled to a one-third interest while under the earlier instrument they might claim the entire estate; hence, their appeal from the trial court's decision admitting the "Affirmation of Gift" to probate.
It has seemed necessary to set out the record thus fully in order to consider not only the text of the instrument itself but also the situation and circumstances of its execution.
I. We have here to determine whether the decision of the district court is supported by sufficient evidence. The action is not triable de novo on appeal. Sisters of Visitation v. Glass, 45 Iowa 154; Ross v. McQuiston, 45 Iowa 145; In re Will of Donnely, 68 Iowa 126, 26 N.W. 23.
Since the facts are undisputed in the record we have only to inquire whether as a matter of law the...
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