In re Pike's Will

• Decision Date: 19 June 1936
• Docket Number: 42933.
• Citation: 267 N.W. 680,221 Iowa 1102
• Parties: In re PIKE'S WILL.
• Court: Iowa Supreme Court

267 N.W. 680

221 Iowa 1102

In re PIKE'S WILL.

No. 42933.

Supreme Court of Iowa.

June 19, 1936

Appeal from District Court, Clinton County; W. R. Maines, Judge.

An instrument claimed to be the will of Frances Rule Pike being offered for probate, contestant denied it had been properly executed and witnessed. Contestant prevailed. Proponent has appealed.

Affirmed.

Sutton & Sutton, of Clinton, for appellant.

H. I Smith, of Clinton, for appellee.

RICHARDS, Justice.

In this cause an instrument, purporting to be the last will and testament of Frances Rule Pike, was offered for probate. Contestant claimed that the instrument had not been properly signed, executed, published, and witnessed as a will. The district court found that the instrument was never executed or witnessed as required by law and refused its admission to probate. Proponent has appealed.

Section 11852, 1931 Code, is determinative of the issue involved and is in following words:

" 11852. Formal Execution . All other wills, to be valid, must be in writing, signed by the testator, or by some person in his presence and by his express direction writing his name thereto, and witnessed by two competent persons."

Although the instrument bears signatures of two purported witnesses, contestant claims the instrument was not " witnessed by" one of these witnesses, Miss Helen M Billings, in the manner contemplated by the foregoing statute. To sustain such claim contestant relies on the following facts in the record: Decedent had asked Miss Billings whether she would be a witness to her will; that decedent did not have with her nor exhibit any instrument purporting to be a will at the time of this conversation about two weeks thereafter a Miss Rule brought to the schoolhouse where she and Miss Billings were teachers the instrument involved in this controversy; Miss Rule asked Miss Billings whether she would sign it; Miss Billings having never previously seen the instrument signed her name as a witness where it now appears on the instrument and handed it back to Miss Rule; this all occurred in the office of Miss Rule at the schoolhouse; decedent was not present during any part of this transaction; about a month later decedent thanked Miss Billings for having signed the instrument; decedent at no time exhibited the instrument to Miss Billings, nor had it with her at the time of either of the conversations between the decedent and Miss Billings; prior to decedent's death Miss Billings had seen the instrument but once, that is, at the time she signed her name at the school house.

Whether Miss Billings witnessed this will as required by the statute above quoted depends, of course, upon the meaning of the provision therein that...