Neimand v. Seemann
| Decision Date | 16 December 1907 |
| Citation | 114 N.W. 48,136 Iowa 713 |
| Parties | BERTHA NIEMAND, Appellee, v. CHRISTIAN SEEMANN ET AL., Appellants |
| Court | Iowa Supreme Court |
Appeal from Clay District Court.--HON.W. B. QUARTON, Judge.
ACTION in equity to set aside the probate of a will. The hearing resulted in a decree in favor of plaintiff, and the defendants appeal.
Reversed.
Milchrist & Scott, for appellants.
F. F Faville, for appellee.
The instrument admitted to probate was executed in March, 1895, by John Seemann and Maria Seemann, husband and wife. It is recited in the instrument that the said parties do "make and declare this our last will," etc. Two specific bequests follow, one to a son, Christian, and one to a daughter, Bertha, the latter being the plaintiff in this action, and it is then provided that all the balance shall be divided equally among three of the testators' children, Christian, Karl, and Mina, "and we hereby appoint our son Christian to be our sole executor of this our last will and testament, which shall not be executed till six weeks after we are both dead." The italics are ours. The instrument was signed by both, and properly witnessed. This action was commenced by the daughter Bertha in 1905, and the petition recites the death of John Seemann in January, 1900, and of Maria Seemann in September, 1904; that the instrument of will to which we have referred above was offered for and admitted to probate in the Clay district court April, 1905. It is then asserted that the instrument is uncertain in its provisions; that it is not an instrument known to the law as a will, but is invalid and void as such, in consequence of which no property rights were acquired by the legatees and beneficiaries named therein in the property of the decedents by virtue of the same. The prayer is that the instrument be construed and interpreted, and that it be decreed to be a nullity and void, incapable of conferring any rights to the property of the decedent, and that a decree be entered canceling and setting the same aside.
The defendants, who are the legatees and beneficiaries aside from plaintiff, answered admitting the execution by their parents of the instrument as alleged in the petition, that said parents died as alleged, and that at the time of their death they were each the owner of real and personal property. There follows an affirmative allegation to the effect that the will "is clear and definite in its provisions, and, without ambiguity, devises and bequeaths the property of said testators." All other allegations of the petition were denied. It is then specially alleged that prior to the said will being admitted to probate this plaintiff appeared and objected on grounds as follows: That the instrument was not executed as required by law; that it shows on its face that it is not a complete instrument; that it is not an instrument subject to probate as the will of either of the decedents, and is invalid and void as a will. Further, that, at the submission of said will for probate, plaintiff appeared, waived a trial by jury, and consented to the submission of her objections to the court on the evidence offered. And it is said that the matter was so heard, and that at the conclusion of the hearing--as recited in the order entered--"the court having heard the proofs and examined the instrument, . . . and having heard the testimony of the subscribing witnesses," found that the instrument should be admitted to probate, and it was ordered accordingly. It is then insisted that, by reason of the facts so pleaded, plaintiff became estopped and concluded from further interposing objections to the legality of said will.
The case coming on for trial, the plaintiff moved for judgment on the pleadings for the reason that upon a construction of the instrument set out in the petition she was entitled to a decree as prayed, and that no legal defense to the action was presented by the answer. Pending the motion the parties agreed in open court that the cause should be regarded as submitted for final decision on the pleadings. The decree as entered was in accordance with the prayer of the petition.
I. It is appropriate that we consider first the effect of the matter pleaded in estoppel, for if the plea is good the case must be considered at an end. The precise question may be stated thus: Conceding the facts of the answer, did the proceedings taking place in the probate court, as pleaded in the answer, amount to a prior adjudication of the issuable matter tendered by the petition in this action so as to call for an application of the doctrine of res adjudicata? Necessary to an affirmative answer to this question, out of the probate proceedings three things must appear: Jurisdiction in the court to hear and determine; that the substantial issue there was as here; that such issue was heard and determined of record. We are clearly of the opinion that the facts of the answer fairly make disclosure of these necessary matters. First, as to jurisdiction to hear and determine. We have in this State one court of general jurisdiction--the district court--to which is committed the disposition of all matters arising at law or in equity, all matters criminal, and in probate. Separate dockets are kept, of course, but this is for convenience only, and the court at one sitting and without requirement of formality may go from one to the other as may be expedient or required by the state of the business before it. Sitting in probate, the court has "original and exclusive jurisdiction to probate the wills of, and to grant administration upon the estate of all persons," etc., and "shall have jurisdiction in all matters in relation to . . . the management and disposition of the property of and settlement of such estate," etc. Code, section 225.
II. Respecting the probate of a will, it is the statutory provision that after the will is produced it shall be read by the clerk and a day fixed for proving it. "When the probate of a will is contested, either party to the contest shall...
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