OPINION
GAYNOR, J.
On the
13th day of June, 1915. John Henry Vonderharr died testate,
leaving surviving him, as his only heirs at law, the
following named children: Clara Nothem, Clem J., Bernard H.,
Frank, Henry, and Anton Vonderharr, Anna Siemonsma, Frances
Schnieders, Rosa Siemonsma, Mary Plagge, and John Vonderharr,
and the following grandchildren, to wit: Henry Hulsing and
Mary Matthias, children of a deceased daughter; Elizabeth
Hulsing; and Bernard, Mary, Aloysius, Edward,
Lawrence, and Cecelia Vaske, children of Josephine Vaske, the
deceased daughter of Henry. His wife had died some years
before.
As said
before, he died testate, leaving the following will:
"I,
John Henry Vonderharr, being of sound and disposing mind and
memory, do hereby make, publish and declare this instrument
as and for my last will and testament, in manner following:
"I
hereby will, devise and bequeath all my property, real and
personal, in manner following, and hereby revoke all previous
wills at any time heretofore made by me.
"I
will, devise and bequeath to John Vonderharr and Frank
Vonderharr, share and share alike, Section No. Ten, in
Township No. Ninety-four, north of Range Forty-three, west of
the 5th Principal Meridian, in East Orange Township, Sioux
County, Iowa, subject to the condition that they pay the sum
of ten thousand dollars
to Clem Vonderharr, that they pay the sum of ten thousand
dollars to Ben Vonderharr, that they pay the sum of one
thousand dollars to Mary Plagge, formerly Mary Vonderharr,
that they pay the sum of three thousand six hundred and
twenty-five dollars to each of my following named children:
Anna Siemonsma, formerly Anna Vonderharr, Francis Schnieder,
formerly Francis Vonderharr, Rosa Siemonsma, formerly Rosa
Vonderharr, Henry Vonderharr, Clara Vonderharr, Antonie
Vonderharr. And further that they pay the sum of three
thousand six hundred and twenty-five dollars to the children
of Lizzie Hullsing, formerly Lizzie Vonderharr, and the sum
of three thousand six hundred twenty-five dollars to the
children of Josephine Vaske, formerly Josephine Vonderharr,
and by the use of the word children in these last two
respective payments, is meant such children as shall survive
me after my death and said payments to go to them share and
share alike; I further hereby make these payments a charge
and lien on the land until the same are paid, said payments
to be paid within five years after my death and
to bear interest at the rate of five per cent, after my
death.
"The
rest, residue and remainder of my said property, I will,
devise and bequeath as follows:
"That
out of my said residue and remainder should first be paid the
expenses of my last sickness and funeral, and any other debts
that I may owe. I then bequeath to John Vonderharr the sum of
five thousand dollars. I further bequeath to Frank Vonderharr
the sum of five thousand dollars; all the rest, residue and
remainder to be equally divided between Anna Siemonsma,
Francis Schneider, Rosa Siemonsma, Henry Vonderharr, Clara
Vonderharr, Anton Vonderharr, Mary Plagge, Ben Vonderharr,
and Clem Vonderharr, and the children of Lizzie Hullsing,
said children inheriting the respective share of their
mother, and the children of Josephine Vaske, said children
inheriting the respective share of their mother.
"I
hereby nominate and appoint my son, John Vonderharr, executor
of my last will and testament, and ask that he be allowed to
serve without giving bond.
"In
witness whereof, I have to this, my last will and testament,
written upon two sheets of paper, subscribed my name this
19th day of January, 1915."
This
will was presented and filed for probate in the district
court of Plymouth County, Iowa, on the 17th day of June,
1915, and the following notice of probate was issued by the
clerk of said court, and duly published as required by law:
"Estate
of John Henry Vonderharr, Deceased.
"State
of Iowa, Plymouth County, SS.
"To
John Vonderharr, Frank Vonderharr, Clem Vonderharr, Anna
Siemonsma, Frances Schniders, Rosa Siemonsma, Henry
Vonderharr, Clara Vonderharr, Anton Vonderharr, Ben
Vonderharr, Mary Plagge, children of Lizzie Hulsing and
children of Josephine Vaske, known heirs at law of John Henry
Vonderharr, late of said county, deceased, and all others
concerned:
"You
are hereby notified that, on the 17th day of June, 1915, there was filed in the office of the clerk of the
district court of the state of Iowa, in and for Plymouth
County, and opened and read by said clerk, an instrument in
writing purporting to be the last will of John Henry
Vonderharr, deceased, late of said county.
"And
you are further notified that the 29th day of September,
1915, had been fixed for the final proof and hearing of said
will, at which time all persons interested may appear and
show cause why the same should not be admitted to
probate."
Prior
to the date fixed for probate, the following objections were
filed to the probate of the will:
"Come
now Clem J. Vonderharr, Bernard H. Vonderharr, Henry
Vonderharr, Anton Vonderharr, Clara Vonderharr, Anna
Siemonsma, Frances Schnieders, Rosa Siemonsma, Mary Plagge
and Mary Mathias and Henry Hulsing, children of Elizabeth
Hulsing, formerly Elizabeth Vonderharr, now deceased, and the
children of Josephine Vaske, formerly Josephine Vonderharr,
now deceased, all of the foregoing being the children and
grandchildren respectively of said deceased.
"That
there is filed in the court and probate is asked of a
pretended last will and testament of the said John Henry
Vonderharr, deceased.
"That
said pretended last will and testament is not the last will
and testament of said John Henry Vonderharr, deceased, and
should not be admitted to probate for the following reasons,
to wit:
"1.
That the testator was of unsound mind when it was executed.
"2.
That it was procured by undue influence and fraud.
"Wherefore,
contestants ask that the said will be not admitted to
probate, and that the same be held for naught; also judgment
against proponents for costs."
After
said will was filed for probate, and before the day fixed for
its probate, John Vonderharr, son of Henry, and named in the
will hereinbefore set out, died, leaving a will in which his
wife, Anna, was made sole beneficiary.
On or about the 7th day of October, 1915, Anna
Vonderharr appeared in said cause, and filed the following
application for leave to defend against the claims of the
objectors to the probate of the will of Henry:
"Comes
now Anna Vonderharr, and respectfully states to the court:
"That
her husband, John Vonderharr, died a resident of Sioux
County, Iowa, on the 18th day of June, 1915, and that his
last will and testament has been duly admitted to probate in
Sioux County, Iowa, as Number 1888 probate; that, on the 22d
day of September, 1915, your petitioner was duly appointed
sole executrix of the estate of her late husband, the said
John Vonderharr, and has duly qualified as such, and is now
acting as such executrix.
"That
John Henry Vonderharr, the father of this petitioner's
husband, died a resident of Plymouth County, Iowa, on the
13th day of June, 1915, and that he left a last will and
testament which was duly filed with the clerk of the district
court in and for Plymouth County, Iowa, on the 17th day of
June, 1915; that the clerk of said court thereupon issued the
usual citation, fixing the probate of said will for the 29th
day of September, 1915, and publisher's proof showing due
publication of said citation and notice has been duly filed
in this cause; that, on the 17th day of June, 1915, Frank J.
Vonderharr, a son of the said John Henry Vonderharr, and one
of the legatees named in the will of said decedent, filed in
this cause a petition, asking that the will of the said John
Henry Vonderharr be duly admitted to probate. That, in said
will of the decedent, John Vonderharr, the deceased husband
of this petitioner, is named as sole executor; that, by
reason of the death of her said husband, John Vonderharr, and
her appointment as executrix of his estate, the duty devolves
on this petitioner to take such steps as may be necessary to
procure the probate of the will of the said John Henry
Vonderharr.
"That
on the 20th day of September, 1915, there was filed in this
cause a contest and exceptions to the probate of the will of
John Henry Vonderharr, in which said contest
all the legal heirs of said decedent appear to join, save and
except Frank J. Vonderharr and this petitioner's husband,
John Vonderharr, deceased; that John Henry Vonderharr,
deceased, left an estate of the value of approximately $
100,000, consisting in the main of a section of land located
near Granville, in Sioux County, Iowa, and money, notes, and
mortgages, now in the possession of one W. G. Sievers,
special administrator, of Remsen, Iowa; that the contest
aforesaid is based upon the grounds of the testator's
mental...
