Klein's Estate, In re

• Decision Date: 02 May 1950
• Docket Number: No. 47617,47617
• Citation: 241 Iowa 1103,42 N.W.2d 593
• Parties: In re KLEIN'S ESTATE. KLEIN v. CASTORF et al.
• Court: Iowa Supreme Court

Page 593

42 N.W.2d 593

241 Iowa 1103

In re KLEIN'S ESTATE KLEIN v. CASTORF et al.

No. 47617.

Supreme Court of Iowa.

May 2, 1950.

Campbell & Campbell, of Newton, for proponent-appellant.

M. J. Carey, of Newton, for Enid Klein, devisee.

Bray, Carson & McCoy, of Oskaloosa, and Cross & Hamill, of Newton, for contestants-appellees.

GARFIELD, Justice.

Testatrix Johanna Klein died July 27, 1948, at the age of 88, survived by her husband Abe, son John, daughter Helen Castorf, grandson Earl Klein whose father (Carl) died in April, 1943, and grandsons Carl and Merlin Rykhoek whose mother (Marie) died January 1, 1945. Testatrix lift three farms of a total value of about $120,000 and personalty of undisclosed amount.

The will, made December 28, 1945, gives a life estate in all property to the husband and subject thereto a farm of 177 acres to the son John, a 140-acre farm to the grandsons Carl and Merlin Rykhoek, the home 160 acres to the grandson Earl Klein and $2000 to the daughter Helen Castorf. The son John is nominated executor.

The codicil, executed March 26, 1947, makes these changes in the will: The legacy to the daughter Helen is reduced to a life estate in $2000 with remainder to the son and daughter of the son John. The 140-acre farm is left to the daughter-in-law Enid Klein (widow of the son Carl) subject to a charge of $10,500 payable by her in three equal shares to the grandsons Carl and Merlin Rykhoek and Carl E. Klein, son of John Klein. The husband Abe is given the right to use or dispose of the moneys and credits, with 75 per cent of any remainder at his death to the son John and 25 per cent to the grandson Earl Klein.

The son John offered the will and codicil for probate. Objections were filed by the daughter Helen Castorf and grandsons Carl and Merlin Rykhoek, charging improper execution of the will and codicil and mental incapacity and undue influence. The jury returned a verdict for contestants and its answers to interrogatories state neither the will nor codicil was executed according to law and testatrix lacked testamentary capacity and was under undue influence when both will and codicil were made. Judgment was entered on the verdict denying probate of the will and codicil. From the judgment proponent has appealed.

I. Proponent contends it was established as a matter of law that both will and codicil were duly executed. Contestants say the issue was properly submitted to the jury.

The witnesses to the will are Mr. and Mrs. Vander Pol, farm neighbors of testatrix. Mr. Vander Pol's brother married a sister of Ben Rykhoek, father of contestants Carl and Merlin Rykhoek. In the forenoon of December 28, 1945, Enid Klein (widow of the son Carl), who lived with testatrix and her husband, went to the Vander Pol home and asked them whether they would come and witness Johanna's will. The Vander Pols went to the Klein home that evening. Mr. and Mrs. Klein and Enid were there.

Mr. Vander Pol testifies: 'Mr. Klein went in the other room and got the will and put it on the table where Mrs. Klein was and she signed it and she gave me the pen and I signed it. Then I gave the pen to my wife and she signed it. Both my wife and I were present when Johanna signed.'

Before testatrix signed the will she was uncertain whether to sign 'Mrs. Abe Klein' or 'Johanna Klein.' Mr. Klein then called Enid into the room who told her to sign the way her name appeared in the will. Enid also showed testatrix the line on which to sign. Vender Pol also says 'Mrs. Klein never said a word about what she was signing. I wouldn't have known what she had signed if Enid hadn't told us she wanted us to come down and witness a will.'

Mrs. Vander Pol's testimony is substantially the same as her husband's. Both seem quite clear as to the circumstances of the signing. Mrs. Vander Pol says testatrix wrote the date in the will.

Witnesses to the codicil are Mr. and Mrs. Knopf, tenants on one of testatrix's farms. Mrs. Knopf formerly taught school. The daughter-in-law Enid asked Mrs. Knopf by telephone if she and her husband would come over to the Klein home. Two or three weeks earlier Abe had told Mr. Knopf 'Grandma' was going to change her will. Mr. and Mrs. Knopf went to the Klein home that afternoon. Mr. and Mrs. Klein were alone in a small room. The codicil was on the table where Mrs. Klein was sitting. She signed the paper, then handed Mr. Knopf the pen, he signed, handed the pen to his wife and she signed. Both Mr. and Mrs. Knopf testify to these matters and that they don't recall any statement by Mrs. Klein regarding the will or codicil.

On August 10, 1948, after testatrix died, Mr. Knopf told one of contestants' attorneys and Ben Rykhoek he knew nothing about what was in the paper they signed, that Mr. Klein (rather than Enid) asked them by phone to come over and 'Mrs. Klein didn't say anything while we were there. I don't remember that Mr. or Mrs. Klein signed while we were there. They might have.' The attorney wrote out this statement but Mr. Knopf refused to sign it because he didn't want trouble with the Kleins although he then admitted it was true. Later Knopf talked with his wife, with Mr. Klein and with proponent's attorney and testifies the special reason he now remembers he saw Mrs. Klein sign the codicil is that was the first time he ever saw her write her name.

The will and codicil were prepared by Mr. Campbell, an attorney in Newton, a few days before the date of each instrument. The attestation clause to the will signed by that Vander Pols reads: 'We hereby certify that Johanna Klein, of Jasper County, Iowa, did in our presence in said county on December 28, 1945, sign the foregoing instrument and declare it to be her last will and testament and we, at her request and in her presence and in the presence of each other, do hereunto subscribe our names as witnesses thereto.' The attestation clause to the codicil signed by the Knopfs is the same except the date is March 26, 1947, and the instrument referred to is 'her codicil to her last will and testament.' It is to be inferred none of the four witnesses read the attestation clause they signed.

Section 633.7, Code 1946, I.C.A., requires that a will 'be in writing, signed by the testator, * * * and witnessed by two competent persons.' Witnesses to the will must subscribe to it. In the matter of the Will of Boyeus, 23 Iowa 354. Compliance with this statute is all that is necessary for proper execution. Scott v. Hawk (Ladd, J.), 107 Iowa 723, 77 N.W. 467, 70 Am.St.Rep. 228; In re Estate of Bybee, 179 Iowa 1089, 1092, 160 N.W. 900; In re Will of Droge, 216 Iowa 331, 334, 249 N.W. 209; 68 C.J., Wills, section 273, page 649.

The statute contemplates the will must be signed by the maker in the presence of the subscribing witnesses or he must adopt or acknowledge his signature to them and it must be signed by the witnesses at the request of the maker. In re Will of Droge, supra; In re Estate of Harter, 229 Iowa 238, 247, 294 N.W. 357.

No formal request by the maker to the witnesses to act as such is necessary. The request may be implied from his acts or conduct or from surrounding circumstances. See In re Estate of Mathews, 234 Iowa 188, 194, 12 N.W.2d 162, 165, and citations; In re Estate of Burcham, 211 Iowa 1395, 1399, 235 N.W. 764; Mulligan v. Leonard, 46 Iowa 692, 695; In re Cosgrove, 290 Mich. 258, 287 N.W. 456, 125 A.L.R. 410, 413, and Anno. 414, 420, 423, 429: 'There is considerable authority * * * that a request may be implied from the testator's silent acquiescence in, or failure to object to, the attestation by the witnesses.' (P. 429 of 125 A.L.R.); 68 C.J., Wills, section 337; 57 Am.Jur., Wills, section 289: 'The request * * * may be conveyed to the witness by signs, gestures, or other conduct.'

It is not necessary that testator declare to the witnesses the character and purpose of the instrument, which amounts to what is called publication. In re Will of Hulse, 52 Iowa l62, 664, 3 N.W. 734, 736; Scott v. Hawk, supra, 107 Iowa 723, 725, 77 N.W. 467, 70 Am.St.Rep. 228; Nixon v. Snellbaker, 155 Iowa 390, 393, 136 N.W. 223; In re Estate of Bybee, supra, 179 Iowa 1089, 1093, 160 N.W. 900; In re Estate of Harter, supra, 229 Iowa 238, 244, 294 N.W. 357; In re Estate of Mathews, supra, 234 Iowa 188, 193, 12 N.W.2d 162, 164; 57 Am.Jur., Wills, sections 284, 300; 68 C.J., Wills, section 343.

The statement in Re Estate of Huston, 238 Iowa 297, 299, 27 N.W.2d 26, 28, 'He (proponent) assumes the burden of proving compliance with certain technical, formal rules requiring signing, witnessing and publishing', should not have included 'publishing.' It is true, as contestants assert, that proponent has the burden of proving, signing and witnessing of the instruments. Hull v. Hull, 117 Iowa 738, 743, 89 N.W. 979; Beebe v. McFaul, 125 Iowa 514, 516, 101 N.W. 267; In re Estate of Olson, 239 Iowa 1149, 1155, 34 N.W.2d 207, 210; 68 C.J., Wills, section 748; 57 Am.Jur., Wills, section 854.

We think proper execution of the will and codicil appears as a matter of law.

As stated, both witnesses to the will say testatrix signed the instrument in their presence and then handed the pen to Mr. Vander Pol who signed and in turn handed the pen to his wife who also signed. Both witnesses signed in testatrix' presence without objection from her. Under the authorities above cited this evidence establishes that the witnesses signed at testatrix' request. See also 68 C.J., Wills, section 339. There is no room for a contrary finding. Upon like reasoning the codicil was also signed under similar circumstances by the witnesses thereto at Mrs. Klein's request.

Testatrix was not required to inform the witnesses of the character and purpose of either instrument. See authorities previously cited. Nor was it necessary that either will or codicil be read to or by testatrix in their presence. In re Estate of Bybee, supra, 179 Iowa 1089, 1092, 160 N.W. 900; Smith v. Ryan, 136 Iowa 335,...