Keck v. McKinstry (In re McKinstry's Will)

• Decision Date: 18 October 1927
• Docket Number: No. 38356.,38356.
• Citation: 215 N.W. 497,204 Iowa 487
• Parties: IN RE MCKINSTRY'S WILL. KECK v. MCKINSTRY ET AL.
• Court: Iowa Supreme Court

204 Iowa 487

215 N.W. 497

IN RE MCKINSTRY'S WILL.

KECK

v.MCKINSTRY ET AL.

No. 38356.

Supreme Court of Iowa.

Oct. 18, 1927.

Appeal from District Court, Washington County; H. F. Wagner, Judge.

Motion to review and vacate two orders by the clerk, one fixing five days' notice of hearing of application for probate of will and the other admitting the will to probate. Motion denied, and movants appeal. Affirmed.Bailey & Baldrige, of Washington, D. C., J. C. Calhoun, of Keosauqua, and Starr & Jordan, of Fairfield, for appellants.

William M. Keeley, of Chicago, Ill., and Morrison & Morrison, of Washington, Iowa, for appellee.

MORLING, J.

[1] The only question argued is whether under section 11865, Code 1924, the clerk has authority to prescribe less than ten days' notice of hearing of application for probate of will. The section reads as follows:

“The clerk shall give notice of the time fixed, by publishing a notice, signed by himself and addressed to all whom it may concern, in a daily or weekly newspaper printed in the county where the will is filed, once each week, for three consecutive weeks, the last publication of which shall be at least ten days before the time fixed for such hearing. The court or the judge in vacation, or clerk, in his discretion, may prescribe a different notice.”

The clerk ordered notice of hearing by one publication in the newspaper named at least five days before the date set. The notice was given and order admitting the will to probate accordingly entered. It is not claimed that either the clerk in making the order or the court in denying the motion to review abused their discretion, if the statute authorized the clerk to prescribe less than the ten days' notice. It is not necessary to review the history of the statute in controversy. We are unable to see that it is at all ambiguous or uncertain, or that it requires interpretation. If no different notice is prescribed, the three publications, the last of which shall be ten days before the time fixed, must be given; but by the plain language of the statute as it now stands “the court or the judge in vacation or clerk in his discretion may prescribe a different notice.”

[2] Ample remedy for abuse of discretion is provided by motion for review. Sections 11834, 11835, Code 1924. Besides one desiring to contest the will has one year after notice and two years in the absence of notice of probate in which to sue to set aside the will. Section 11007, Code 1924.

Affirmed.

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