Nixon v. Snellbaker

Decision Date16 May 1912
Citation136 N.W. 223,155 Iowa 390
PartiesNIXON v. SNELLBAKER.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Crawford County; Z. A. Church, Judge.

The facts are stated in the opinion. Affirmed.

Conner & Lally, of Denison, for appellant.

Harding & Kahler and Geo. A. Richardson, all of Denison, and S. M. Elwood, of Sac City, for appellee.

SHERWIN, J.

There was offered for probate an instrument in writing purporting to be the last will and testament of Mahaly Snellbaker, executed June 4, 1890. The instrument was signed by said Mahaly Snellbaker and witnessed by W. A. McHenry and Mary S. McHenry, but without an attestation clause. The probate of the instrument was contested on the ground that it was not legally executed. There was a trial to the court without a jury, and a judgment admitting the will to probate. The contestant appeals.

At the time of the execution of the will, the testator was a resident of Denison, Iowa, as were also the witnesses; W. A. McHenry being at that time in the banking business in Denison, and Mary S. McHenry being his wife and living with him there. It was proven that the body of the will was in the handwriting of Mahaly Snellbaker, and that it bore her signature. It was also proven that McHenry and his wife signed the will as witnesses. At the time of the trial, both of these witnesses were alive, but out of the state, and their depositions were used. They both testified that they signed the instrument, that they were acquainted with Mahaly Snellbaker during her lifetime and with her signature, and that her signature to the will was genuine. But beyond this neither witness had any recollection. They did not recollect signing the will themselves, nor did they recollect of testator's signing it.

[1][2] The appellant's most serious complaint relates to the admission of declarations alleged to have been made by the testator several years after the execution of the will. These declarations were, in effect, that she had herself written the will and signed it, and had then taken it to the home of W. A. McHenry, one of the witnesses thereto, and had him and his wife, Mary S. McHenry, sign it as witnesses. The decisions of the several courts are not in accord on the question of the admissibility of the declarations of the testator, whether made before or after the execution of the will. It is a pretty general rule, however, that declarations which tend to vary or contradict the terms of a will are not competent because of the rule excluding parol evidence tending to contradict a writing, and for other reasons which we need not more specifically refer to. Declarations tending to show the state of the testator's mind, where such issue is involved, are quite generally held admissible. But no question is here involved except the one whether, under the circumstances shown, the declarations of the testator made long after the execution of the will are competent for the single purpose of showing that she signed the will, and that her signature thereto was afterwards witnessed by McHenry and his wife. This question was settled adversely to appellant's contention, but without discussion, in Scott v. Hawk, 105 Iowa, 467, 75 N. W. 368. In that case the subscribing witnesses were dead, and the declaration of the testator, made years after the execution of the will that it was his will, was held competent. That case and this one cannot be distinguished on the ground that there the testator examined the instrument at the time he made the declaration. Here the will was written by the testator herself, and her signature thereto is undisputed, which makes at least as strong a case for the...

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8 cases
  • Kroschel v. Drusch
    • United States
    • Supreme Court of Minnesota (US)
    • November 16, 1917
    ......261; In re. Lillibridge's Estate, 221 Pa. St. 5, 69 A. 1121, 128. Am. St. 723; Herring v. Watson, 182 Ind. 374, 105. N.E. 900; Nixon v. Snellbaker, 155 Iowa 390, 136. N.W. 223; Allen v. Griffin, 69 Wis. 529, 35 N.W. 21;. In re Silva's Estate, 169 Cal. 116, 145 P. 1015;. 1 ......
  • Kroschel v. Drusch (In re Drusch's Estate)
    • United States
    • Supreme Court of Minnesota (US)
    • November 16, 1917
    ...re Lillibridge's Estate, 221 Pa. 5, 69 Atl. 1121,128 Am. St. Rep. 723;Herring v. Watson, 182 Ind. 374, 105 N. E. 900;Nixon v. Snellbaker, 155 Iowa, 390, 136 N. W. 223;Allen v. Griffin, 69 Wis. 529, 35 N. W. 21;In re Silva's Estate, 169 Cal. 116, 145 Pac. 1015; 1 Schouler, Wills, 323, 326. I......
  • Kroschel v. Drusch
    • United States
    • Supreme Court of Minnesota (US)
    • November 16, 1917
    ...re Lillibridge's Estate, 221 Pa. St. 5, 69 Atl. 1121, 128 Am. St. 723; Herring v. Watson, 182 Ind. 374, 105 N. E. 900; Nixon v. Snellbaker, 155 Iowa, 390, 136 N. W. 223; Allen v. Griffin, 69 Wis. 529, 35 N. W. 21; In re Silva's Estate, 169 Cal. 116, 145 Pac. 1015; 1 Schouler, Wills, 323, 32......
  • Repp's Estate, In re
    • United States
    • United States State Supreme Court of Iowa
    • January 10, 1950
    ...... The presumption arises that it was duly executed even if there had been no attestation certificate. In . Page 611. re Will of Snellbaker, 155 Iowa 390, 136 N.W. 223; In re Estate of Olson, 239 Iowa 1149, 34 N.W.2d 207.         There was, in the present case, an attestation ......
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