In re Puckett's Estate

• Decision Date: 05 August 1949
• Docket Number: 47474.
• Citation: 38 N.W.2d 593,240 Iowa 986
• Parties: In re PUCKETT'S ESTATE. SULLIVAN et al. v. AMBROSE.
• Court: Iowa Supreme Court

38 N.W.2d 593

240 Iowa 986

In re PUCKETT'S ESTATE.

SULLIVAN et al. v. AMBROSE.

No. 47474.

Supreme Court of Iowa

August 5, 1949

Roy E. Havens, of Logan, and Kimball, Peterson Smith & Peterson, of Council Bluffs, for appellant.

Dan J. Buckley, of Harlan, and Thos. J. Buckley, of Dunlap, for appellees.

BLISS Justice.

W. B Puckett, 82, a long-time resident of Woodbine, Iowa, executed the proposed will on July 20, 1946. He died October 5, 1947. His wife died in November, 1935. Three children were born to them. One died in infancy. One daughter, Mrs. Clyde Crowder, died at the birth of her only child, Esther Ambrose, the contestant. The deceased's other daughter, Mrs. Roy Crowder, preceded him in death, and was survived by four children, the proponents Beth Clausen, Bertha Redman, and John and Earl Crowder. The proponent, Robert Sullivan, was named as executor of the will. Deceased owned his residence in Woodbine and farm land in Shelby and Harrison counties, and personal property. Had deceased died intestate, Mrs. Esther Ambrose, the contestant, would have received an undivided one half of decedent's property, and the other four grandchildren would have received the other half.

Under the proposed will, Mrs. Ethel Waddell, who had been the testator's housekeeper from March, 1937 until his death, was given his automobile and all the household property in his home. The remainder of his property was given in equal shares to his five grandchildren, subject to the provision that the farms and equipment should be operated under control of the executor for five years after testator's death, and the net profits divided annually among the grandchildren.

The deceased had made earlier wills which had been deposited in the clerk of court's office and withdrawn, as shown by the signature of W. B. Puckett on the will register. Puckett had done his banking business with Robert Sullivan, but while the latter was in the service, Puckett had transferred such business to the First National Bank of Woodbine. Robert Sullivan had operated the office at Panama, Iowa, of the State Bank of Portsmouth, to which office he returned in January, 1946 after leaving the service. Sometime in June, 1946, Puckett discussed with Earl E. DePue--who apparently had been designated executor in the will of Puckett--the making of a new will, giving his property equally to his grandchildren. He also discussed the same matter with J. E. Roundy, an old friend and business associate. DePue told Puckett that, since Sullivan was back, it might be better to name him as the executor. Puckett talked to Sullivan, and the latter told him he would act as executor, but declined to draw the will, and suggested that a lawyer be employed to do so.

On July 15, 1946, Puckett and Mrs. Waddell went to the clerk's office at Logan, Iowa and withdrew the will there on file, which was in a sealed envelope, and, on July 20, 1946, Puckett, took it to a stenographer at the First National Bank of Woodbine. She testified that he asked her to make a copy of the will with but one change--the nature of which change she did not recall. While he waited she made an original and a carbon copy of the will. Except for the change, she made an exact copy of the old will, including misspelling, punctuation, and other errors. The will, as copied, consisted of two sheets of white legal cap paper. On the first sheet, paragraphed and single spaced, was the will itself and a blank line for the testator's signature, and also three lines of the attestation clause. The month and day of the date stated in the will and in attestation clause were left blank. On the second sheet, which was marked at the top with the numeral, 'II', were the last two lines of the attestation clause, with two blank lines for the signatures of the witnesses. The typist stapled the two sheets of the original, and the two sheets of the carbon copy, separately. The stapling machine was a common type using a wire staple which by a blow on the compressor forces the ends of the staple through the papers and clinches the staple on the other side. Each set of papers was fastened with two staples. Puckett left the bank with these papers and an envelope and arrived at his home about ten-thirty o'clock in the forenoon, of July 20, 1946. He read the carbon copy and noticed that the date in the will and in the attestation clause was '1945', as in the old will, and that the address of Robert Sullivan was typed as 'Logan' instead of 'Panama'. He had Mrs. Waddell correct the carbon copy by crossing out 'Logan' and by inserting 'Panama' just above, and by striking the figure '5' in each date line and inserting instead the figure '6', to make the year appear as '1946' in both places. She also filled in the day and the month in the will and the attestation clause to show the date was the '20 day of July, A.D., 1946.' These corrections and changes were made by Mrs. Waddell with an indelible lead pencil which Puckett customarily carried. Shortly afterward, Frank Voss, the groceryman delivered some groceries in the kitchen, and Mrs. Waddell told him to wait as Mr. Puckett wished to see him. Puckett then came into the room with the carbon copy in his hand and stated that it was his will, and asked Voss and Mrs. Waddell to witness his execution of the will. Puckett then signed his name to the will in the presence of Voss and Mrs. Waddell and each of them, in the presence of the other and of Puckett, signed the attestation clause as witnesses. Puckett placed the executed will in the envelope and sealed it. Mrs. Waddell wrote the name, 'W. B. Puckett', on the outside of the envelope. Puckett and Mrs. Waddell then drove to the clerk of court's office at Logan, and the sealed envelope was left for safekeeping with the clerk. The envelope, Exhibit 1, by the rubber stamp of 'Laura Leonard, Clerk' on it, shows that it was filed in her office on July 20, 1946.

The Clerk of Court testified to the filing of the will as noted above, and also that on October 6, 1947 in the presence of Mrs. Waddell, C. D. Erlewine, Mrs. Ambrose, and Mr. Elston (her lawyer), the envelope was opened, and the will Ex. 1-a, was found therein and was read. The clerk fixed November 3, 1947 at 10 o'clock A. M. as the time for probate. On November 1, 1947, Esther Ambrose, as contestant, filed written objections to the probate of the will, on the following grounds: '* * *. 6. Said instrument shows that it is not subscribed to by two witnesses. That two persons subscribed their names to their certificate following the purported will did not constitute subscribing their names to the purported will. By reason of these facts the execution thereof was insufficient to make a valid will.

'7. Said instrument shows on its face that it was not witnessed by two competent and disinterested witnesses, by reason whereof the execution thereof was insufficient to make it a valid will.' On December 30, 1947, the contestant amended her objections by adding paragraph 8: 'That the said purported will of W. B. Puckett is not in fact his will for that it was not signed by him; that the purported signature of W. B. Puckett appearing thereon is in fact not his signature; that said purported will was not signed by some other person in his presence and by his express direction writing his name thereto.' Proponents, by answer, denied the allegations in the objections.

The trial to court was begun on April 2, 1948 and continued at intervening times until its conclusion on August 13, 1948. Each side at the close of all testimony moved for a directed verdict. The court stated that it would pass upon them in ruling on the merits of the case. The court concluded that the motions should be overruled and proceeded to find and hold that the evidence failed to sustain the contestant's objections to the will, but established that the will had been duly executed by the deceased and witnessed by two competent witnesses, all as provided by law.

We agree fully with the trial court's findings, conclusions, and judgment.

The attesting clause of the will was as follows: 'We certify that on the 20 day of July, 1946, at Woodbine, Iowa, W. B. Puckett to us personally known did in our presence sign the foregoing instrument and declare it to be his last will and testament, and we at his request and in his presence and in the presence of each other, do hereunto subscribe out names as witnesses. (Italics added)

Ethel Waddell

Frank Voss.'

The italicized part of the clause appears on the first sheet of the instrument, Ex. 1-a, on which the entire will is typed and, the part not italicized, including the signatures of the subscribing witnesses, is typed at the top of the second sheet. Just above the attestation clause, and just above the signature of the testator, and being the last three lines of the will, is the following sentence: 'In witness whereof I have to this my last will and testament subscribed my name this 20 day of July, 1946, in the presence of the hereinafter subscribed witnesses.' (Italics added).

The signature of the testator and of each of the subscribing witnesses were made with an indelible lead pencil.

I. After providing for the execution of certain verbal wills, and wills of soldiers and sailors in certain situations, section 633.7, Code 1946, I.C.A., provides: '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.'

Code section 633.9 provides: 'No subscribing witness to a will can derive any benefit therefrom unless it be signed by two competent and disinterested persons as witnesses thereto, besides himself, * * *.'

Ethel Waddell, by said section, was...