Lawrence's Estate, In re, 49892
| Decision Date | 12 January 1960 |
| Docket Number | No. 49892,49892 |
| Citation | 100 N.W.2d 645,251 Iowa 305 |
| Parties | In the Matter of the ESTATE of E. Dale LAWRENCE, Deceased. Petition of Marie ROLFING for Probate of Lost Will. Marie ROLFING, Appellant, v. H. J. HARVEY, Administrator, and Heirs-At-Law, Appellees. |
| Court | Iowa Supreme Court |
Larson & Carr, Charles City, for appellant.
A. C. Campbell and Robert J. Eggert, Charles City, for appellees.
Plaintiff, Marie Rolfing, filed her petition in probate seeking to establish and have admitted to probate an alleged lost will of E. Dale Lawrence, deceased, made shortly before July 13, 1957, in which she was sole beneficiary. The administrator and heirs at law defended. Following trial to the court without a jury relief was denied and plaintiff has appealed.
Dale Lawrence, a resident of Charles City, died there August 13, 1957, about one year and nine months before the trial hereof. June 21, 1957, his wife, Myrtle, predeceased him. The had no children. Plaintiff lives in Cedar Rapids. Her husband was a nephew of Myrtle. Dale was friendly with the Rolfings and visited them at least three times after Myrtle died.
July 13, 1957, Dale wrote a letter with pen, mailed from Charles City, in an envelope addressed to plaintiff, which read:
The sentence we have italicized is the strongest evidence, assuming its admissibility, in support of the petition. Myrtle had been beneficiary of the insurance policy. August 6, 1957, Dale wrote the Rolfings another letter, enclosing the insurance policy, which read: . Barbara, age 11, is a daughter of plaintiff.
Plaintiff testified she did not recall Dale ever spoke to her about drawing up the will. Dale visited in the home of Lillian Hart at least four times after his wife died. She said, 'Every time he came he spoke of Marie Rolfing and said she had been the nicest to them and she was to get everything he had.' The witness added that decedent did not say he had made a will, just that he was leaving everything to Marie.
Plaintiff's mother-in-law, Myrtle's sister, testified she talked to and had letters from Dale after his wife's death but he said nothing about a will. Also that she did not recall any of Dale's relatives, except one, visiting Dale and he was not as careful as he could have been about a place for his papers. Myrtle's brother said Dale visited him after his wife's death and he was with Dale in the hospital most of the last 24 hours he lived but nothing was said at any time about his having made a will. The man who assisted Dale in changing the beneficiary of his insurance policy, a longtime friend, testified he recalled no talk in regard to a will.
Aside from the above testimony there is a strong showing by both sides that thorough search and investigation were made for a will or evidence thereof. Search was made by six different persons, including two attorneys. Dale's safety deposit box in a bank, a metal box in his home, his desk, the entire home, garage and automobile were carefully searched. Books and magazines were gone through leaf by leaf. Inquiry was made of all attorneys in Charles City and at least two from other towns. The administrator wrote all Dale's many friends fro whom he could find an address regarding a will. The administrator who was Dale's first cousin, as well as several persons in sympathy with plaintiff, evidently made a sincere and diligent effort to unearth some evidence of a will. None was found.
We do not consider some offered testimony by plaintiff and, particularly, her husband, of conversations with decedent because defendants' objection to their competency under section 622.4, Code, 1958, I.C.A., the dead man statute, was obviously good. We may say, however, the testimony referred to, if considered, would add little to plaintiff's case.
1. The first of two assigned errors is that the court erred in holding the evidence insufficient to establish due execution and contents of the lost will. It is argued decedent's written and oral declarations are sufficiently clear, satisfactory and convincing to establish both due execution and contents of the will.
As plaintiff seems to concede, she must prove her case by evidence that is clear, satisfactory and convincing. It need not, however, be free from doubt. Goodale v. Murray, 227 Iowa 843, 856, 868-869, 289 N.W. 450, 456, 462, 126 A.L.R. 1121, 1130-1131, 1138, and citations: Iowa Wesleyan College v. Jackson, 249 Iowa 91, 95-96, 86 N.W.2d 126, 129, and citations; Annotation 126 A.L.R. 1139, 1141-1143; 57 Am.Jur., Wills, sections 981-3; 95 C.J.S. Wills § 419 ().
It is important to keep in mind that this is a probate action tried as one at law without a jury. It is not reviewable de novo here but only upon the errors assigned. The trial court's decision on the facts has the force and effect of a jury verdict. It was for the trial court to determine the credibility of witnesses and weight of the evidence. It follows that the decision must stand unless plaintiff is entitled as a matter of law to prevail or, stated in another way, unless she would have been entitled to a directed verdict if trial had been to a jury. Our problem is not whether the evidence is such as to permit a decision in favor of plaintiff but whether it is so persuasive as to require such a decision. We have frequently pointed out, even where the burden of proof is satisfied by a preponderance of evidence, that in the absence of an admission by his adversary it is not often that one who had the burden establishes his claim as a matter of law.
See in support of the views just stated: Roth v. Headlee, 238 Iowa 1340, 1342-1343, 29 N.W.2d 923, 924, and citations; Davis v. Knight, 239 Iowa 1338, 1342-1343, 35 N.W.2d 23, 24-26, and citations; Ruble v. Carr, 244 Iowa 990, 993, 59 N.W.2d 228, 230, and citations; Dougherty v. Sioux City, 246 Iowa 171, 191-192, 66 N.W.2d 275, 286, and citations; Iowa Wesleyan College v. Jackson, supra.
Davis v. Knight, supra, cites many authorities for the proposition that where the appellant in a law case contends he was entitled to a directed verdict the evidence must be construed in the light most favorable to the trial court's judgment. To like effect are Ruble v. Carr, supra (at page 994 of 244 Iowa, at page 231 of 59 N.W.2d); Jackson Wholesale Florists v. Schappaugh Floral, 246 Iowa 1189, 1192, 70 N.W.2d 154, 156; Curtis v. Wilkins, 248 Iowa 1314, 1318, 85 N.W.2d 546, 548.
We think no authority can be cited that supports plaintiff's first assigned error. Certainly none has been called to our attention.
Plaintiff was required to prove by clear, satisfactory and convincing evidence (1) due execution and former existence of the alleged will, (2) it has been lost and could not be found after diligent search, (3) the presumption of its destruction by decedent with intention to revoke it, arising from its absence at death, has been rebutted, and (4) contents of the will. Goodale v. Murray, supra, 227 Iowa 843, 856-857, 289 N.W. 450, 456-457, 126 A.L.R. 1121, 1130-1131, and citations. See also 95 C.J.S. Wills § 419; 57 Am.Jur., Wills, sections 981-3.
Only the first and fourth requirements need be considered. We are not persuaded due execution and former existence or contents of the alleged will have been established by the requisite degree of proof--certainly not as a matter of law. Substantially the only evidence of the first and fourth propositions is the declaration in decedent's letter, 'I also drew up a will and left my estate to you' (emphasis added), and his oral declarations that Marie was to get everything decedent had, without mention of a will.
At least the written declaration was made after it is claimed the will was executed. As stated, the petition alleges the will was made shortly before the date of the letter. We have never held the contents of a lost will may be established by declarations of the alleged testator. And our latest decision on the subject expressly refrains from passing upon the admissibility or competency of post-testamentary declarations for such purpose. Goodale v. Murray, supra, at page 864 of 227 Iowa, at page 460 of 289 N.W., at page 1136 of 126 A.L.R.
We have held evidence of declarations of the testator admissible on the issue of due execution of the will. Scott v. Hawk, 105 Iowa 467, 75 N.W. 368; Nixon v. Snellbaker, 155 Iowa 390, 136 N.W. 223; Goodale v. Murray, supra.
In Scott v. Hawk, the subscribing witnesses were dead and the genuineness of their signatures was shown but not that of the mark of testator. The trial court directed a verdict against proponent because due execution was not shown. A new trial was then granted on the ground of newly discovered evidence of an attorney that he had shown the will to testator, the latter examined it carefully and pronounced it his will. We affirmed the order for new trial and observed that since the subscribing witnesses were dead, other evidence of execution was admissible and testator's declaration was convincing evidence thereof.
In Nixon v. Snellbaker, supra, the will was written and signed by testatrix. The witnesses were...
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