In re Tinsley's Will

• Citation: 187 Iowa 23,174 N.W. 4
• Decision Date: 22 September 1919
• Docket Number: No. 32693.,32693.
• Parties: IN RE TINSLEY'S WILL.
• Court: United States State Supreme Court of Iowa

187 Iowa 23

174 N.W. 4

IN RE TINSLEY'S WILL.

No. 32693.

Supreme Court of Iowa.

Sept. 22, 1919.

Appeal from District Court, Polk County; George A. Wilson, Judge.

A written instrument having been filed for probate as the last will and testament of J. Clark Tinsley, deceased, certain persons, claiming to be the heirs at law of said Tinsley, appeared and objected thereto for reasons stated in the opinion. On trial to the court the objections were overruled, and the instrument was adjudged to have been duly proved and established. The contestants appeal. Affirmed.W. W. Wilcoxen and Frank H. Dewey, both of Des Moines, for appellant.

Carr, Carr & Evans, of Des Moines, for appellee.

WEAVER, J.

The paper filed and admitted to probate as the will of the deceased is exceedingly brief, and in the words following:

“Des Moines, Ia., Sept. 2--15.

In case of any serious accident, after my just debts are paid, I direct that my aunt Miss Mary E. Clark, take entire charge of my estate for disposal as she sees fit.

J. Clark Tinsley.

Witnesses:

W. H. Barnard, Des Moines, Iowa.

J. H. Fowler, Des Moines, Iowa.”

The deceased appears to have left neither wife nor lineal descendants, and the contestants are surviving collateral heirs of various degrees of relationship.

The objections filed to the admission of the will are as follows:

First. The instrument purporting to be the last will and testament of J. Clark Tinsley is not testamentary in character. It leaves nothing to be done after the death of the testator.

Second. Said instrument makes no provision for, or mention of, a disposition of property after, or in the event of, death of the purported testator.

Third. The instrument is directory only as to the management of the business of the decedent during his lifetime, and then only in case of any serious accident whereby he is incapacitated. Said instrument on its face purports to appoint an agent or attorney in fact, and is not testamentary in character.

Fourth. The said decedent met with no serious accident during his lifetime and died a natural death. Said instrument cannot operate as a testamentary disposition of his estate and made in contemplation of death.

Fifth. Said instrument, which is alleged to be a will, rests upon a contingency or the happening of an event, and refers to some future contingent event, which did not take place, and said instrument is therefore ineffective as a will.

Sixth. Said instrument does not make any devise or distribution of property nor did it vest the same in any person; it leaves the disposal of property to another person. The decedent did not by said instrument, and could not, delegate to an agent the power to make a will for him.

Seventh. Said instrument does not vest a title in any one, and no beneficiary is named or indicated therein, and the same is therefore void.

Eighth. If the said instrument created Miss Mary E. Clark a trustee for the purpose of attending to any business and making a disposal of the property of J. Clark Tinsley, she, having departed this life prior to the time of his death, the trust fails and the instrument is void.

Ninth. If the said instrument created a life estate only in Miss Mary E. Clark, she having departed this life prior to the decedent, said devise has failed, and the property is subject to distribution among the heirs at law of said decedent.

By a later amendment to these objections it was further alleged, in substance, that, even if construed to be a will, its utmost effect was to provide a power to be exercised by the said Mary E. Clark, or a life estate in her with power attached, and that, the said devisee having died in the lifetime of the testator, said provision never became effective.

The evidence produced on the trial tends fairly to show that Tinsley was a resident of Des Moines, where he was engaged in business. At the date of the instrument in controversy, he was contemplating a more or less extended visit to California. With the paper prepared by himself in its present form ready for execution, he called at the office of the Security Loan & Investment Company, with which he was accustomed to do business, and requested the president and vice president of that institution to witness its execution as his will. They complied with his request, and attached their names to it as witnesses. Just what disposition Tinsley made of the paper at that time is not expressly shown, but we think it is inferable that he delivered it to the beneficiary named therein, by whom it was retained until her death, in the year 1917, when it passed into the hands of the sole beneficiary of her will, Miss Olive M. Clark, who presented it for probate.

For a reversal of the order admitting the will to probate appellants contend:

[1] I. That, as a matter of proper practice, probate should be denied to an offered writing when from the contents of the instrument, considered in the light of the facts shown on the hearing, it is inoperative as a will. Discussing this proposition, counsel admit, for the purposes of this branch of the discussion, “that the instrument offered was in form a will, and under some of the decisions in this state was therefore properly a matter for probate, leaving any question of construction to be settled afterward under proper proceedings.” This concession is necessitated by the repeated holdings of this court that the probate of a will decides no question but that which relates to its execution and publication. Lorieux v. Keller, 5 Iowa, 196, 68 Am. Dec. 696;Fallon v. Chidester, 46 Iowa, 588, 26 Am. Rep. 164;Niemand v. Seemann, 136 Iowa, 716, 114 N. W. 48;Murphy v. Black, 41 Iowa, 488.

No question is raised against the sufficiency of the evidence of due execution and publication of this instrument, and with the concession of counsel above cited, together with their further statement that the trial court “did not attempt to pass on anything except the sole question whether the instrument was sufficient in form to be admitted to probate as a will” (a sufficiency which, as we have seen, is conceded), there seems to be nothing left on which to base the first assignment of error. Even if it should be held (a proposition we are not here called upon to decide) that under some circumstances the court might in its discretion have entered upon an inquiry whether there was anything upon which the alleged will could operate if probated, there is certainly no rule or precedent in this jurisdiction for holding it reversible error for the court, in considering an application for admission of a will, to limit its attention to the fundamental inquiry whether the paper offered is “in form a will,” and whether there is proof of its due execution and publication.

II. Of other objections made to the will, the following may be considered together: They are: (1) That the paper is not testamentary in character; (2) that it constitutes simply an attempt to create a trust, but fails to designate any beneficiary; and (3) that it does no more than provide a naked power to sell.

[2] That the instrument may properly be treated as testamentary in character is conceded by counsel in the first division of their argument, and, while it is perhaps their privilege to assert inconsistent grounds of contest, they can hardly hope to convince the court that they are right upon both propositions. Any writing by which a person undertakes to make disposition of his property or estate to take effect after his death is testamentary in character, and, if duly signed, witnessed, and published, is entitled to admission to probate. It makes little difference whether the language employed be that of a lawyer skilled in all technicalities of the law of wills, or is prepared by the most ignorant and unpracticed scrivener, if, when candidly read and fairly construed, it reveals the purpose of the testator to make a disposition of his estate or some part of it which shall become effective and irrevocable at his death. It is not necessary that there shall be express technical words of devise or bequest, or an express declaration that its provisions shall take effect only at his death, if when read as a whole, in the light of the circumstances under which the instrument was made, such is the reasonable meaning to be extracted from its terms. A very large proportion of wills presented to the courts for probate is of very informal character, and not a few have been prepared by the testators themselves. If held to any rigid test of form, very many of them would be held hopelessly bad; but the courts everywhere very properly feel bound to look to the substance, and, if the intent of testators be ascertainable, give their wills effect accordingly. Flynn...