McCarn v. Rundall

• Court: Iowa Supreme Court
• Writing for the Court: SHERWIN, J.
• Citation: McCarn v. Rundall, 111 Iowa 406, 82 N.W. 924 (Iowa 1900)
• Decision Date: 16 May 1900
• Parties: MARY AUGUSTA MCCARN, Appellee, v. MARTHA J. RUNDALL, AND WILLIAM FOOS, Appellants

82 N.W. 924

111 Iowa 406

MARY AUGUSTA MCCARN, Appellee, v. MARTHA J. RUNDALL, AND WILLIAM FOOS, Appellants

Supreme Court of Iowa, Des Moines

May 16, 1900

Appeal from Jones District Court.--HON. H. M. REMLEY, Judge.

THIS is an action in equity to probate a destroyed will. There was a trial to the court, and the will was admitted to probate. The defendants appeal.

Reversed.

Jamison & Smyth for appellants.

D McCarn for appellee.

OPINION

SHERWIN, J.

Ella Foos departed this life September 14, 1897. On or about the seventeenth day of June, 1897, she executed an instrument in writing purporting to be her will. On the thirty-first day of July, 1897, this instrument was destroyed by her direction, and the fragments thereof burned in her presence. On the same day, and as a part of the same transaction, a new will was executed by her. This last will was offered for probate after her death, and objections were made thereto on the grounds of mental incapacity, undue influence, and fraud and duress. Upon the issue thus made there was a trial to a jury, which resulted in the general finding that the instrument offered was not the valid will of Ella Foos, and its probate was denied. After the termination of that trial, this action was brought in equity, setting up the facts as above stated, and a purported copy of the instrument of June 17, 1897, and praying that the same be admitted to probate as the last will and testament of Ella Foos. The defendants are the heirs of Ella Foos, and objected to the probate of the instrument of June 17th for the reasons following: First, because the will under which plaintiff claims was revoked, as provided by law; and second, because the setting aside of the second will did not operate to revive the destroyed will. The plaintiff herein was named as a legatee in both wills. Section 3276 of the Code provides that "wills can only be revoked, in whole or in part, by being canceled or destroyed by the act or direction of the testator, with the intention of so revoking them." The plaintiff admits the destruction of the instrument executed June 17, 1897, but contends that said destruction did not work a revocation thereof, because it does not appear that such was the intention of the testator, and for the further reason that, the jury having found the second will invalid, the testator did not have the mental capacity to revoke the former will. The fallacy of this position is apparent for two reasons: First, because the jury did not indicate in its verdict that it was based upon the lack of mental capacity in the testator, and there is no evidence before us tending even in the remotest degree to sustain such conclusion; and second, because the only witness who testified upon the trial of this cause was called by the plaintiff, and upon his cross-examination testified that in his opinion Ella Foos was of sound mind when she directed him to destroy the first will, "and intelligently and deliberately directed him to destroy and do away with it." The witness says: "She called for the June will, and wanted it destroyed and done away with; and I tore it up by her directions, and the pieces were put in the stove and burned." This evidence clearly and unmistakably proves the intention of the testator to revoke the first will entirely, and that she had the mental capacity so to do. There is nothing in the record to indicate that its revocation was dependent upon the validity of the subsequent will, and, the revocation being complete under the statute, the will cannot be revived by parol. Carey v. Baughn, 36 Iowa 540; 29 Am. & Eng. Enc. Law, 333; Stewart v. Mulholland, 88 Ky. 38 (10 S.W. 125, 21 Am. St. Rep. 320). ...