Nish v. McCaull (In re Nish's Estate)

Citation220 Iowa 45,261 N.W. 521
Decision Date21 June 1935
Docket NumberNo. 42860.,42860.
PartiesIn re NISH'S ESTATE. NISH et al. v. McCAULL et al.
CourtUnited States State Supreme Court of Iowa

220 Iowa 45
261 N.W. 521

In re NISH'S ESTATE.
NISH et al.
v.
McCAULL et al.

No. 42860.

Supreme Court of Iowa.

June 21, 1935.


Appeal from District Court, Polk County; Loy Ladd, Judge.

Proceedings in probate to set aside codicil to the will of Mary Nish. The petition to set aside the codicil was overruled and dismissed. The petitioners appeal.

Reversed.

O. M. Slaymaker, R. E. Killmar and D. D. Slaymaker, all of Osceola, for appellants.

Rolla Shewmaker, of Leon, and Emmert, James & Lindgren, of Des Moines, for appellees.


ALBERT, Justice.

Mary Nish was a resident of Des Moines, and died on January 17, 1932. She had been twice married; and had one child, Alice McDowall Curtiss, by her first husband, and six children by her second husband.

On the 12th of October, 1931, she made a will. Among other provisions therein was: “I am leaving nothing to my daughter, Alice McDowall Curtiss, for the reason that she is a daughter by my first husband, and my other children are from my second husband, from whom I received whatever property I now possess.”

On the 28th day of December, 1931, she made a codicil to this will, by which she amended her original will as follows: “I stated in my last will and testament that I left nothing to my daughter Alice McDowall Curtiss, for the reason that all of my property I then and now own was derived from my second husband, John Nish, and that she, the said Alice McDowall Curtiss, was my daughter by my first husband, Alexander McDowall, I now add that should I in any manner, by inheritance, will, devise or bequest, come into possession of any money or other property from or through any of the relatives of my first husband, Alexander McDowall, that such property shall at my death pass to my daughter, Alice McDowall Curtiss, and, this change in my last will and testament shall mean that especially, should I inherit any money or other property from or through William D. Nelson, now deceased, late of Chicago, Illinois, or from or through his widow Mary McDowall Nelson, now of Chicago, Illinois, that any such bequest or inheritance shall pass at my death to my daughter, Alice McDowall Curtiss. By the words inherit, I also mean this to cover any gifts of any nature coming to me from or through any of the relatives of my former husband, Alexander McDowall.”

This codicil was duly signed and witnessed.

On October 14, 1933, said will and codicil were admitted to probate in the district court of Polk county, Iowa, and executors were appointed and qualified.

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