Iowa Wesleyan College v. Jackson

• Decision Date: 12 November 1957
• Docket Number: No. 49224,49224
• Citation: 86 N.W.2d 126,249 Iowa 91
• Parties: IOWA WESLEYAN COLLEGE, Mt. Pleasant, Iowa, and the Baptist Church, Lockridge, Iowa, Appellants, v. Lois M. JACKSON, Tedford W. Miles, Arno Tedford Naeckel, Lynn Miles Naeckel, T. W. Miles, Administrator of the Estate of Winifred Miles Carter, Deceased; Christian Church of Corydon, Iowa; Methodist Church of Corydon, Iowa; The Public Library of Corydon, Iowa; Piney Woods School of Piney Woods, Mississippi; and Hindman School of Hindman, Kentucky, Appellees.
• Court: Iowa Supreme Court

Page 126

86 N.W.2d 126

249 Iowa 91

IOWA WESLEYAN COLLEGE, Mt. Pleasant, Iowa, and the Baptist Church, Lockridge, Iowa, Appellants, v. Lois M. JACKSON, Tedford W. Miles, Arno Tedford Naeckel, Lynn Miles Naeckel, T. W. Miles, Administrator of the Estate of Winifred Miles Carter, Deceased; Christian Church of Corydon, Iowa; Methodist Church of Corydon, Iowa; The Public Library of Corydon, Iowa; Piney Woods School of Piney Woods, Mississippi; and Hindman School of Hindman, Kentucky, Appellees.

No. 49224.

Supreme Court of Iowa.

Nov. 12, 1957.

Stuart & Stuart, Chariton, for appellant Iowa Wesleyan College.

A. V. Hass, Chariton, R. E. Killmar, Osceola, and Elton Johnston, Corydon, for appellees Lois M. Jackson, Tedford W. Miles, Arnot Tedford Naeckel, Lynn Miles Naeckel, and T. W. Miles, administrator.

SMITH, Justice.

Winifred Miles Carter, of Corydon, Iowa, who died August 5, 1955, executed a will in 1952 which was left in her possession. It has not been found since her death though ample search has been made therefor. The trial court held the evidence sufficient to prove its execution and contents but insufficient to establish testatrix had not revoked it; a decree for defendants was entered. Plaintiffs have appealed. Defendants are the legal heirs of decedent.

Mrs. Carter was widow of H. H. Carter who had been a judge of the Third Iowa Judicial District. They had no children and left no direct heirs. He died in March, 1941, leaving a will which gave her all his property. Both were graduates of plaintiff College and devoted attendants at every commencement time and she continued to attend those exercises regularly after his death. He was for many years member of the College Board of Trustees and its chairman when he died. His portrait was displayed in the corridor of the chapel. He and Mrs. Carter many times discussed the disposition of their property and talked of leaving everything to the College where 'it would do the most good for young people.'

After his death decedent made annual contributions to the college Living Endowment Fund and frequently talked of expecting to make a substantial contribution to the College sometime.

The record establishes that Mrs. Carter executed three wills in 1941, 1942, and 1952, respectively. All were drawn by Wesley V. Hart, Judge Carter's former court reporter and present reporter for Judge T. W. Miles, present judge of the same judicial district and Mrs. Carter's nephew. Judge Miles was named executor in each will and was Mrs. Carter's close financial adviser.

Mr. Hart is an accredited attorney and was an intimate friend and associate of both Judge and Mrs. Carter. That relationship continued between him and Mrs. Carter after Judge Carter's death. He was the witness, by whose testimony principally the execution and terms of Mrs. Carter's wills were established. Each will was witnessed by Mr. Hart and Mrs. Nina West, a friend and near neighbor of the decedent. She also testified to the execution of the several instruments.

All were alike in naming plaintiff College as residuary beneficiary after various somewhat minor (but really rather substantial) gifts, principally to various churches and schools. The exact details are unimportant here. Judge Carter's maiden sister, Jessie Carter, and niece, Catherine Kelly, were remembered ($5,000 to each) in the first will, as was decedent's sister, Lois Jackson (with a devise of the Carter home in Corydon, Iowa). The final will (after Jessie's death) omitted provisions for the first two and provided for Lois Jackson (in addition to the devise of the home) a bequest of $150 per month for life, to be paid out of a residuary trust in favor of plaintiff College. Judge Miles was named as trustee, 'with power and authority to exercise (sic) the trust in any way he saw fit.'

After the second will was executed the earlier one was meticulously destroyed, as was the second after execution of the third. Each was left in Mrs. Carter's possession but the third has not been found since her death. It is the one here sought to be established.

The first will had given her sister, Lois Jackson, who lived in California Mrs. Carter's, home in Corydon, Iowa 'and its contents.' The principal purpose of the second will was to change this provision to read 'home in Cordyon and its furnishings and personal effects' to avoid a possible construction of the word 'contents' to include any money, stocks or bonds which might be in the home: 'Owing to the situation in California I do not want them to get their hands on any money.' Nevertheless when the third will was being drawn and she was asked if she wanted the devise of home left in, she responded: 'I do not know whether it is wise or not. They may turn it into money and run through it, they do not know the value of a dollar, but if she wants it that way, it will be a roof over her head.'

Something is also made of the fact that each will contained some provision for disposition of decedent's collection of frosted circle pattern glassware: 'It is impossible to imagine her allowing her beloved glassware to go under the auctioneer's hammer,' according to plaintiffs' argument.

The record is replete with testimony of Mrs. Carter's general good health; the high esteem in which she was held; and that she was careful, methodical, reserved, conservative and independent in her business and personal affairs and definite in her opinion but 'not one to arbitrarily force her opinions upon others.'

She is described by appellants as 'not one to confide and consult any further than necessary. Her wills were discussed only with the scrivener, her investments only with T. W. Miles. She collected the rents and ran the farms herself. Her social acquaintances knew little of her personal or business affairs. * * * She was consistent, conservative and concerned and not the type of person to destroy her life's plans and die intestate with no regard for the disposition of her property.'

The foregoing fairly includes the considerations upon which plaintiffs ask reversal. It is based largely upon testimony of Mr. Hart but also upon that of other friends of Mrs. Carter who knew her intimately. It is confidently and ably argued by plaintiffs' attorneys as being adequate to support their claim. Before appraising it to determine its sufficiency we need to determine first the burden that rests upon plaintiffs.

I. It is to be remembered this is a probate case triable at law. We do not attempt to weigh the evidence to determine its preponderance. Our duty is merely to determine its sufficiency to overcome a presumption. The trial court is in the position a jury would occupy in that respect were it triable to a jury whose judgment upon conflicting testimony is conclusive. Citation of authorities at this point is hardly necessary but see: Coulter v. Petersen, 218 Iowa 512, 255 N.W. 684, and authorities cited; Goodale v. Murray, 227 Iowa 843, 856, 289 N.W. 450, 126 A.L.R. 1121.

II. Plaintiffs' burden is even more difficult than in the ordinary case. They confront a presumption of law which requires much more than a preponderance of evidence to overcome. And they are compelled to rely on circumstantial evidence. Under the record here the document was left in Mrs. Carter's possession after a codicil was executed in June, 1955, and has not been found since her death although a most exhaustive search for it has been made.

Under these circumstances a presumption arises that Mrs. Carter destroyed the will with intent to revoke it. And the burden of one seeking to establish the will and overcome the presumption is to produce clear, satisfactory and convincing evidence to the contrary. Goodale v. Murray, supra, 227 Iowa 843, 856, et seq., 289 N.W. 450, citing In re Estate of Thorman, 162 Iowa 237, 144 N.W. 7, 7...