Lynch v. Miller

• Decision Date: 07 October 1880
• Citation: 54 Iowa 516,6 N.W. 740
• Parties: LYNCH v. MILLER.
• Court: Iowa Supreme Court

54 Iowa 516

6 N.W. 740

LYNCH

v.MILLER.

Supreme Court of Iowa.

Filed October 7, 1880.

Appeal from Kossuth district court.

Action in chancery to set aside the probate of a will and to declare the will void as to the real property within this state. A demurrer to the answer of defendant was sustained, and defendant electing to stand upon her pleadings a decree was accordingly entered granting the relief prayed for by plaintiff. Defendant appeals.Parsons & Runnels, with T. B. Snyder, for appellant.

Wishard & Read, for appellee.

BECK, J.

1. The petition alleges that plaintiff and defendant are the only heirs at law of Alexander Miller, deceased, and that in 1878 a paper purporting to be the last will and testament of Alexander Miller was admitted to probate in Stevens county, Texas, upon a copy thereof filed in the circuit court of Kossuth county, and was there admitted to probate as a foreign will. Plaintiff alleges that the paper so admitted to probate was not the last will and testament of Alexander Miller, and was not so executed as to become valid under the laws of this state. The plaintiff prays that the probate of the will made by the circuit court of Kossuth county be set aside, and the will be declared void as to real property in the state.

The defendant and Barren S. Doty, who claims as a devisee under the alleged will, in separate answers to the petition, allege and show that the instrument admitted to probate was executed in Des Moines; that it is attested by only one witness, but wholly written by the testator, who, at the time, was a resident of the state of Texas, where he subsequently died; that the will was duly admitted to probate in Texas, and under the laws of that state was sufficiently attested by one witness, for the reason that it was wholly written by the testator. A demurrer to these answers was sustained, and a decree entered accordingly. We understand from the abstract that defendant, Margaret J. Miller, alone appeals. The questions arising in the case we will now proceed to consider.

2. It is not claimed that the will in question was executed in compliance with, and is valid under, the laws of this state; nor is it denied that it is a valid instrument under the laws of Texas. The testator owned lands in this state. Is the will sufficient to pass the title thereto? It is a well-settled rule of the law that the lex rei sitœ controls the title and disposition of real estate. This law controls the forms and solemnities required in the execution and attestation of wills. Story's Conflict of Laws, §§ 474, 435, 431; Loving v. Pairo, 10 Iowa, 283. The books contain abundant authority in support of this proposition.

3. We are next required to consider the effect of the filing of the will in the circuit court of Kossuth county, and its admission to probate there. Code, § 2351, provides that wills admitted to probate in another state shall be admitted to probate in this state...