McBride v. Seaman (In re Olson's Estate), No. 47306.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HALE
• Citation: 239 Iowa 1149,34 N.W.2d 207
• Parties: In re OLSON'S ESTATE. McBRIDE v. SEAMAN.
• Docket Number: No. 47306.
• Decision Date: 19 October 1948

239 Iowa 1149
34 N.W.2d 207

In re OLSON'S ESTATE.
McBRIDE
v.
SEAMAN.

No. 47306.

Supreme Court of Iowa.

Oct. 19, 1948.

Appeal from District Court, Humboldt County; G. W. Stillman, Judge.

Contest of will. On hearing the will was admitted to probate. Affirmed.

[34 N.W.2d 208]

Jaqua & Lovrien, of Humboldt, for appellant.

Melvin L. Baker and John E. Miller, both of Humboldt, for appellees.

HALE, Justice.

Ole Olson, a single man, on July 10, 1941 executed his will providing that after payment of debts, his niece, Pearl McBride, proponent herein, should be his sole legatee and devisee, and expressly making no provision for his nephew, Ray Seaman, ‘for reasons which I consider good and sufficient.’ The will appointed Pearl McBride executrix without bond, with an alternative nominee for executor if for any reason necessary. The will was duly signed with an attesting clause as follows:

‘Be It Remembered That on this 10 day of July, 1941, the foregoing instrument was signed in our presence by Ole Olson, and by him declared to be his Last Will and Testament, and we at his request and in his presence and in the presence of each other have hereunto set our hands as witnesses thereto.

(Signed) ‘Henry C. Olson,

‘Harold Lees.’

On the death of testator the will was filed on August 6, 1947.

On August 26, 1947, objections to probate were filed by Ray Seaman, the reasons for which objections being stated as follows:

‘That the alleged will was not properly executed in accordance with the laws of Iowa and is not a valid will. That the alleged will was not properly witnessed by two competent persons as required by section 633.7 of the Code of Iowa (1946). That the signature of the testator was not properly attested by the alleged subscribing witnesses to the purported will and that they did not sign the same with his knowledge, intent and approval. That there is attached hereto and made a part hereof the affidavit of Harold Lees, one of the alleged subscribing witnesses to the purported will, who states that he has no knowledge of any will of Ole Olson and that he never witnessed or signed such an instrument.

‘Wherefore, this contestant asks that the petition of the proponent be dismissed at proponent's cost and that said instrument be adjudged not to be the Will of Ole Olson, deceased, and that the probate of the pretended will be denied.

(Signed) ‘Ray Seaman, contestant.’

The affidavit of Harold Lees, referred to in the objections, was as follows:

‘I, Harold Lees, being first duly sworn devise and say that I understand that I am one of the purported witnesses of the will of Ole Olson, deceased.

‘I further state that I have never witnessed any will for Ole Olson. That no such will was ever presented to me for my signature and that I have no knowledge of the existence of any such will.

‘I further state that I have no knowledge of the signing of any will of Ole Olson in the presence of Henry C. Olson and that I did not see him sign any instrument which was a purported will of Ole Olson.’ Verified August 28, 1947.

Jury being waived, trial was had, and on January 26, 1948 there was a finding for proponent, and judgment was entered admitting the will to probate; contestant appeals.

The contestant does not, at any time, question the genuineness of testator's signature to the will, or that the instrument was intended by him to be his will, but charges that the will was not properly witnessed. The court in its written findings of fact found that the will had been duly executed and witnessed. The subscribing witness, Harold Lees, infirm in body and eighty and a half years old, as a witness called by contestant, denied his signature, but said his name on the will looked pretty much like it, that it was a pretty good imitation. He also stated he had never seen the will before.

Proof of execution of the will was made by the other subscribing witness, Henry C. Olson (no relation to testator). He could not remember whether Lees was present at the time the will was executed, or whether

[34 N.W.2d 209]

Lees signed in his (the witness') presence. However, this witness certified that he was familiar with the signature of Lees, and in his opinion the name on the will was the genuine signature of Harold Lees. There was testimony of other witnesses, based on acquaintance with the signature of Lees, that in the opinion of such witnesses the signature on the will was that of Harold Lees. Various exhibits of signatures, purporting to be the true signature of Lees, were admitted in evidence; some without objections, and others were his official signature as assessor.

I. Numerous errors are assigned by contestant, some of much the same nature, but his main objections are as to the witnessing of the will and certain objections to the admission of testimony. Contestant first argues that the witness to the will, Harold Lees, was not produced by the proponent, nor was there any showing that he was dead or beyond the jurisdiction of the court. He alleges that this is required by the laws of Iowa. The authorities cited by contestant do not so hold. Death or absence from the jurisdiction,...