In re Price's Estate

• Decision Date: 12 November 1941
• Docket Number: 45688.
• Citation: 300 N.W. 542,230 Iowa 1228
• Parties: In re PRICE'S ESTATE. v. KIRKHAM et al. PRICE et al.
• Court: Iowa Supreme Court

300 N.W. 542

230 Iowa 1228

In re PRICE'S ESTATE.

PRICE et al. v. KIRKHAM et al.

No. 45688.

Supreme Court of Iowa.

November 12, 1941

Appeal from District Court, Ringgold County; Homer A. Fuller, Judge.

Proceedings in probate. Decedent's will having been admitted to probate, contestants moved to set aside the order, asserting that the order was void because of insufficient notice. The court sustained the motion. The administrator c. t. a. and proponents appeal.

Reversed and remanded.

J. A Beard, Grant L. Hayes, and Frank F. Wilson, all of Mount Ayr for appellants.

Warin & Warin and Lewis & Lewis, all of Mount Ayr, and O. M Slaymaker, of Osceola, for appellees.

MILLER, Chief Justice.

Nannie A. Price died testate, a resident of Ringgold County, Iowa, on September 7, 1939. Her will was filed for probate on September 11, 1939. On September 19, 1939, the court " Ordered and Adjudged that Monday, September 25th, 1939 at nine o'clock A. M. at the Court House of Mount Ayr, Iowa be and the same hereby is fixed as the time and place of hearing on the probate of said will, and the Clerk of the District Court of Ringgold County, State of Iowa, is directed to give notice of time and place of such hearing by one publication in the Mount Ayr Record News on Thursday, September 21, 1939."

On September 21, 1939, there was published in the Mount Ayr Record News the following notice:

" State of Iowa, Ringgold County, ss.

District court, in vacation.

To all whom it may concern: Notice is hereby given, that an instrument in writing purporting to be the last will and testament of Nannie A. Price, deceased, was this day produced, opened and read by the undersigned, and that I have fixed the 25th day of September, 1939, as the day for hearing proof in relation thereto.

Witness my official signature, with the seal of said court hereto affixed this nineteenth day of September, 1939.

Asa W. Huggins,

Clerk of the District Court."

On September 25, 1939, the following order was entered:

" Now on this 25th day of September, 1939, this cause came on for hearing for probate of the will of Nannie A. Price.

And the Court having examined the affidavit of publication on file herein, finds that notice of said hearing was had by publication as ordered by the Court. And that the Court has jurisdiction of the subject matter of the parties hereto;

Evidence in support of the execution of the will is heard and the Court having heard the evidence and being fully advised in the premises, finds that said will is entitled to be admitted to probate as the last will and testament of Nannie A. Price.

And the Court from an examination of the will of Nannie A. Price, and being advised in the premises, finds that the person named executor, Jasper W. Price, is now deceased and no alternate was named in said will, the Court proceeded to name an administrator with the will annexed for the administration of said estate.

It is therefore Ordered that said instrument be administered to probate as the last will and testament of Nannie A. Price, and that W. E. Price be named as administrator with will annexed and that he give bond in the sum of twenty thousand dollars ($20,000.00) for corporate bond, or forty thousand dollars ($40,000.00) if private bond is provided and upon his qualification as such administrator with will annexed, that he give notice of his appointment as by law provided."

On the same day, W. E. Price qualified as administrator with will annexed. Notice of his appointment was published in the Mount Ayr Record News in four weekly publications commencing October 12, 1939, and posted in three places in Mount Ayr on October 6, 1939. Proof of publication of the notice of September 21, 1939, was filed October 16, 1939. Price has paid all claims against the estate except one, which is pending on demurrer. Part of the assets of the estate have been distributed and part of the inheritance tax has been paid. The estate is still open.

On March 11, 1941, Frank Kirkham, contestant, filed an application to set aside probate of the will and objections to its probate. Division I asserted that the will was not legally executed. It also asserted that the order of probate was void for the following reasons: " That the Clerk did give one week's publication of notice, but in said notice, he did not specify the time fixed for said hearing, nor did he specify the place fixed for said hearing. That the said notice so given was wholly insufficient and the later purported act of the Court in probating said Will was and is void and of no force and effect, and the said Will has never been probated."

Division II of the application asserted that the execution of the will was procured by fraud, deceit, coercion and undue influence. The prayer was that the purported probate of the will be set aside, and, on the trial that it be held that decedent did not execute the will as required by law and that it is void because procured by fraud, deceit, coercion and undue influence.

The administrator filed resistance to said application. Division I contained a general denial. Division II asserted that proper proceedings had not been invoked. Division III asserted that jurisdiction of the court in probate is in rem and was not defeated by a defective notice. Division IV asserted that the notice complied with the requirements of the statute. Division V asserted that Kirkham had actual notice of the hearing. Division VI asserted that the application, being filed under Chapter 552 § 12787 et seq., of the Code 1939, is barred by the statute of limitations. The prayer was that the application be overruled and dismissed.

Proponents filed a similar resistance. Various heirs intervened and joined in Kirkham's application and objections. Hearing was had on the application to set aside probate of the will because of insufficient notice thereof. The facts above reviewed were shown. The judge that admitted the will to probate stated that he did not have any personal knowledge of the matter excepting what the calendar sheet shows. It was stipulated that, since the will was admitted to probate, four terms of court had intervened in 1940 and one in 1941.

The court set aside the probate of the will and continued the cause on the issues presented by the claims that the will was not legally executed and was procured by fraud, deceit, coercion and undue influence. The order recites:

" The Court finds that it made an Order on the 21st day of September, 1939, which Order was filed September 25, 1939, ordering that September 25, 1939, at 9:00 o'clock A. M., in the Court House at Mount Ayr, Iowa, be fixed as the time and place for hearing on the probate of the Will of Nannie A. Price, deceased, and the Court further finds that the Order required the Clerk of the District Court of Ringgold County, Iowa, to give notice of the time and place of such hearing by one publication in the Mount Ayr Record News, in its issue of Thursday, September 21, 1939. The court further finds that the Clerk did not give such notice and that the notice so given by him only fixed the day, September 25, 1939, without any hour as the time for hearing, and that the said notice did not fix any place of hearing. The Court further finds that because of the failure of the Clerk to give notice as ordered and directed by this court, that the said notice was a nullity and that the later probate of the Will of Nannie A. Price was without jurisdiction and has no force and effect and therefore * * * is set aside, cancelled and held to be without force and effect.

The appointment of William A. Price as administrator is set aside and he is removed and R. C. Smith is appointed Special Administrator and his bond is fixed at $20,000-Surety Bond-to which all parties except."

The administrator and proponents of the will have appealed to this court. They assert that the publication of the notice was sufficient since the proceedings are in rem and that no legal basis for setting aside the order of probate is shown. The exact question thus presented does not appear to have been previously decided by this court. After careful consideration of it, we hold that sufficient merit exists in the contentions of appellants to require a reversal herein.

At the outset we deem it important to consider the type of proceedings with which we are dealing. Appellants contend that the proceedings for the preliminary probate of the will were in rem, whereas appellees contend that they were adversary proceedings. Appellees cite, among other cases Gregg v. Myatt, 78 Iowa 703, 42 N.W. 461, 43 N.W. 760 and Kelly v....