Marty's Estate, In re

• Decision Date: 11 February 1964
• Docket Number: No. 51203,51203
• Parties: In the Matter of the ESTATE of Mat S. MARTY, Deceased. Roy BAKEWELL, Appellant, v. Melvin MARTY, Kenneth Marty and William A. Marty, Appellees.
• Court: Iowa Supreme Court

Page 303

126 N.W.2d 303

256 Iowa 74

In the Matter of the ESTATE of Mat S. MARTY, Deceased.

Roy BAKEWELL, Appellant, v. Melvin MARTY, Kenneth Marty and William A. Marty, Appellees.

No. 51203.

Supreme Court of Iowa.

Feb. 11, 1964.

Ray E. Clough, Mason City, for appellant.

Linnan, Lynch & Straub, Algona, for appellees.

THOMPSON, Justice.

This appeal involves the narrow question whether, within the limits of the statute of limitations, successive contests to the validity of a will may be made by interested parties. Saying that the issue is narrow, however, does not mean that it is simple. Many a narrow strait presents the most serious dangers to the sailor; and so we have found it here. We hope the waters of the present channel are not entirely beyond our depth.

Mat S. Marty died on March 13, 1962. He left a last will which was filed for probate on March 19, 1962. Apparently he left no surviving spouse or heirs of his body. His will directed payments of expenses of administration and all taxes, made a small bequest to a nephew, Melvin Marty, appointed an executor, and directed that the remainder of his estate be converted into cash, divided into fourteen shares, and distributed to several nieces and nephews in stated shares. George Marty was bequeathed a one-half share, which would be one twenty-eighth of the entire net estate. The contestant Roy Bakewell, a nephew, was not named as a beneficiary, nor listed in the preliminary inheritance tax report as an heir.

Before admission of the will to probate, George S. Marty, apparently the same person as the George Marty who was named as a beneficiary, filed objections. Melvin Marty and others, not including the present contestant, filed a resistance. The case was later set for trial; George Marty asked a continuance, which was denied, and the case called for hearing. The contestant George Marty did not appear. A jury was empaneled and sworn. The proponents introduced evidence; no evidence was offered for the contestant, and proponents' motion for directed verdict was granted, and the will was admitted to probate and costs taxed to the contestant. He later served notice of appeal, but failed to prosecute in this court, and his appeal was dismissed.

Such being the situation in regard to George Marty and his objections, on January 16, 1963, the present action was filed. The contestant Roy Bakewell alleged that he is a resident of Minnesota, is a nephew of the decedent, and that he had no knowledge of the proceedings in the estate of Mat S. Marty and was not notified of them. He asserted the same grounds for invalidity of the will as had been relied upon by George Marty: undue influence of certain proponents operating upon the testator to such an extent that the will was not in fact his will. Upon application of the proponents for adjudication of law points under R.C.P. 105, 58 I.C.A., the trial court held that the present action is barred by the former adjudication in the contest brought by George Marty. Plaintiff's petition was dismissed, and he brings this appeal.

I. While the arguments take a considerable range, the substantial question is whether Roy Bakewell is in such relation to George Marty as that the contest brought by the latter, and its decision, is binding upon him as res judicata, or estoppel by judgment. Although there is some difference in the two terms, we think nothing in the present situation calls for a discussion of the distinction, and we shall refer to the defendants' position as being based on res judicata.

II. We can deal shortly with the plaintiff's contention that the judgment in the Marty action was not fully tried out and is not a binding adjudication for that reason. It is apparent that at least the formalities of a trial were had. The matter was at issue; the trial date was fixed; a jury was empaneled; and although the contestant there did not appear or offer any evidence, the proponents did so and a jury verdict was returned. Under these circumstances it can not be denied that a binding judgment was rendered against George Marty. He had his day in court, and a full opportunity to present his case. He could not now be heard to deny that the validity of the will has been fully determined so far as he is concerned. Having challenged the validity of the will on a ground selected by himself, he is concluded on all grounds. Niemand v. Seemann, 136 Iowa 713, 717, 114 N.W. 48, 50. Whether, in the event of a successful challenge to the will by another contestant, as is attempted here, he would be entitled to share in the benefits of such an action we do not have occasion to decide and make no pronouncement thereon.

III. In Iowa, admission of a will to probate is evidence of its due execution, and no more, in the absence of a contest. Code of 1962, section 633.38, I.C.A.; Kelly v. Kelly, 158 Iowa 56, 56-61 inclusive, 138 N.W. 851, 852, 853; In re Estate of Pierce, 245 Iowa 22, 26, 27, 60 N.W.2d 894, 897. Notice by publication of the time fixed for hearing on admission to probate having been duly given, in the absence of a constitutional challenge to its sufficiency we hold that the present contestant was bound by it, to the extent that a rebuttable presumption of due execution arises after admission to probate. He does not, however, challenge the will on this ground.

IV. But he is not foreclosed from contesting other issues, such as undue influence and mental incompetence, unless in some manner he is bound by the contest made by George Marty. This depends upon whether there was privity between him and Marty. It is the gist of the case. If it be thought that the present action is in fact a second attempt by Marty to challenge the will in Bakewell's name, that although the hands are the hands of Esau the voice is the voice of Jacob, proof thereof is lacking.

Under the rules in general of res judicata, Bakewell is not precluded. In re Estate of Richardson, 250 Iowa 275, 281, 93 N.W.2d 777, 781, lays down the essential elements of a holding of res judicata. They are there stated: '1. Same parties, or parties in privity. 2. Same cause of action. 3. Same issues.' We may concede that the same cause of action and the same issues inhere in Bakewell's suit as in Marty's. But clearly the parties are not the same; so unless there was privity between the two Bakewell is not foreclosed by the judgment against Marty. He was not made a party to the first action, no notice of it was served upon him, and he did not appear or take any part.

While it may not be decisive, the defendants here urge that the probate of wills is a proceeding in rem and so binding upon all the world. Whether a true in rem action has this effect in all cases and under all circumstances we do not decide. We think that when a contest of a will is staged between proponents on one hand and contestants on the other, the action is an adversary one, and generally those not made parties are not bound by the judgment reached. The question was thus answered in Stead v. Curtis, 205 F. 439, 450, 451, C.C.A., 9th Cir.: 'It is true that the proceeding is primarily and essentially one in rem; but, when an heir appears to oppose the probate and institutes a contest, it thenceforth presents some of the aspects, and involves many of the considerations characteristic of, suits inter partes. That in many branches of litigation a proceeding in rem in converted into a personal suit by the appearance of the defendant is a matter of frequent occurrence and familiar observation.' Fitzgerald & Mallory Const. Co. v. Fitzgerald, 137 U.S. 98, 11 S.Ct. 36, 34 L.Ed. 608, and Cooper v. Reynolds, 10 Wall. 308, 19 L.Ed. 931 are cited in support of the rule.

V. We think the governing rule here is stated in Coleman v. Bosworth, 180 Iowa 975, 984, 164 N.W. 238, 241: 'Nor is privity established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts.' In 50 C.J.S. Judgments § 788, page 327, it is said: 'One whose interest is almost identical with that of a party, but who does not claim through him, is not in privity with him.' The general rule is laid down in the same volume and section of C.J.S., page 326: '* * * privity relates to persons in their relation to property and not to any question independent of property, and to make one a privy to an action, so as to bar him by the adjudication, he must have acquired an interest in the subject matter of the action, either by inheritance, succession, or purchase from a party subsequently to the action, or must hold the property subordinately.'

The plaintiff here comes within none of the general rules which bind him by the result of an action in which he has not been a party and has not participated in any way; nor can Marty's suit be considered as a class action brought for the benefit of all the heirs. It was not so...