Kelly v. Kelly

• Decision Date: 13 December 1912
• Citation: 158 Iowa 56,138 N.W. 851
• Parties: KELLY ET AL. v. KELLY ET AL.
• Court: Iowa Supreme Court

158 Iowa 56

138 N.W. 851

KELLY ET AL.

v.KELLY ET AL.

Supreme Court of Iowa.

Dec. 13, 1912.

Appeal from District Court, Iowa County; R. P. Howell, Judge.

Action to set aside a will. Demurrer to the petition sustained, and plaintiffs appeal. Reversed.W. J. Baldwin, of Iowa City, and J. M. Dower, of Marengo, for appellants.

Yoss & Wallace, of Williamsburg, and Popham & Havner, of Marengo, for appellees.

WEAVER, J.

Margaret Kelly died testate October 31, 1910. She was unmarried and childless. Her only surviving heirs were her four brothers, James, Thomas F., John, and Patrick. By the terms of her will she gave the bulk of her property to James and Thomas F., making no mention of either John or Patrick. The instrument having been filed for probate, due notice of the proceeding was personally served in this state upon all the heirs, including John and Patrick. No objections were filed by any of the heirs, and upon the usual proof of its due execution the will was admitted to probate at the January, 1911, term of the district court of Iowa county. On November 18, 1911, John Kelly and Patrick Kelly instituted this action to set aside the will and the probate thereof on the ground that the testatrix was at the date of said instrument of unsound mind and incapable of making a valid testamentary disposition of her estate, and that the execution of the alleged will was obtained by undue influence. To the petition alleging the foregoing state of facts the defendants demurred on the following grounds: (1) A defect of parties in that the petition fails to make the executor of the will a defendant in the action; and (2) the petition shows upon its face that the plaintiffs were made parties to the probate proceedings and personally served with notice thereof, but failed to appear thereto or to contest the same in any manner whereby they became and are estopped to deny the validity of the will or the sufficiency of the adjudication upon which it was admitted to probate. The demurrer was held by the trial court to be well taken, and, plaintiffs electing to stand upon their petition without further amendment, the action was dismissed at their costs. From this judgment plaintiffs appeal.

Stated briefly, the question thus presented is whether appellants, as heirs of the deceased, after being notified of the proceedings and allowing the will to be probated without objection, may maintain an original action to set aside the probate and contest the validity of such will. The trial court answered this question in the negative, and we are asked to review the record and reverse such decision.

The right to maintain such action must be found, if at all, in the statute. So far as they have immediate bearing upon the question, our statutory provisions are as follows: (1) Any person of full age and sound mind may dispose of all his property by will subject only to the rights of his creditors and of his surviving spouse if any. Code, § 3270. (2) The will must be in writing and duly witnessed. Code, § 3274. (3) The will must be filed in the proper court and a day fixed for the hearing at which any party in interest may appear and contest the probate. Issues so joined are triable to a jury. Code, § 3283. (4) The clerk must give due notice by publication of the time and place of such hearing unless a different notice is prescribed by the court. Code, § 3284. (5) The admission to probate when duly certified renders the will competent evidence in all courts without further proof. Code, § 3286. (6) Such probate is conclusive proof of the due execution of the will until set aside by an original or appellate proceeding. Code, § 3296. (7) Action to set aside a will may be brought within five years from the date when the instrument “is filed in the clerk's office and notice thereof is given.” Code, § 3447.

Were the question one of first impression, the writer of this opinion would strongly incline to the view upheld by the trial court, and say that the right to maintain an original action to set aside a will after due probate thereof is not available to a party in interest who had due notice of the proceedings and failed to appear or object thereto. To hold otherwise is to complicate the settlement of every estate where a testator has seen fit to exclude an heir from sharing in his bounty and cloud the title to all property so devised by the possibility of a successful contest being instituted at any time during a period of five years. Nor does it seem to the writer that the language of the statute necessarily demands such a construction, but the opposite view seems to have had judicial sanction too long to be unsettled except by legislative intervention. The provision which makes the probate of a will conclusive until set aside by an original or appellate proceeding has been a feature of the statute since early in the history of the state. Code of 1851, § 1297; Revision of 1860, § 2329; Code of 1873, § 2353; Code of 1897, § 3296. It has been quite uniformly interpreted as making the validity of a will the subject of investigation in an original action by a party in interest at any time within five years from the filing of such will for probate and the giving of notice thereof. In accordance with that theory, it has been held that: “Rights of a party claiming a distributive share in his ancestor's estate are not concluded by the order of the court admitting the will to probate. Such party may still, by proper proceedings, have the question, of his right to a portion of his ancestor's estate, determined. The admission of the will decides no question but its due execution and publication.” Lorieux v. Keller, 5 Iowa, 201, 68 Am. Dec. 696. In Havelick v. Havelick, 18 Iowa, 415, the plaintiff brought action to set aside a will which had been admitted to probate, and...