Otto v. Doty
| Decision Date | 18 April 1883 |
| Citation | 15 N.W. 578,61 Iowa 23 |
| Parties | OTTO v. DOTY ET AL |
| Court | Iowa Supreme Court |
Appeal from Story District Court.
ACTION to obtain possession of a tract of land in Story county. Both plaintiff and defendants claim under one J. R. Doty, now deceased. The plaintiff claims as devisee of J. R. Doty. The defendant, J. W. Doty, claims under an alleged deed of the land from J. R. Doty. He claims, also, in case the deed should be found invalid, as the equitable owner by purchase and payment; and, in case it should be found that he is not a purchaser, he claims as father and heir of J. R. Doty. The defendants dispute the validity of the will, and the plaintiff disputes the validity of the deed, and disputes also, J. W. Doty's purchase. The action was tried as in equity, and a decree was rendered for the plaintiff. The defendants appeal.
AFFIRMED.
John L Stevens and J. L. Dana, for appellants.
F. D Thompson, Dyer & Fitchpatrick, for appellee.
J. R. Doty died in September, 1877, in Memphis, Tenn. The day before he died he made the will in question, whereby he bequeathed and devised all his property to the plaintiff, Mrs. Josephine Otto, then residing in Lousiana, but now in Wisconsin. He left no wife nor children. He had formed, as the evidence shows, a very strong attachment to Mrs. Otto, a widow, and had made to her a proposal of marriage. The defendants aver that the testator was a monomaniac on the subject of religion, and also that the execution of the will was obtained by undue influence.
Evidence was introduced showing that the testator was a spiritualist, and entertained many, if not all, of the views peculiar to that sect. We see no other evidence of insanity; and spiritualism, so far as we are aware, has never been held to be insanity.
The allegation of undue influence is equally unsupported. The plaintiff was not with the testator at the time he died, nor at any time during his last sickness. Nor does it appear that any communication took place between them in regard to his property, nor that she ever encouraged any affection on his part which he might not lawfully cherish.
An objection is made, however, by the defendants that the will was never duly probated.
To justify the decree, it was necessary that it should appear that the will had been duly probated in the circuit court of Story county. To justify probate in such court, it should have appeared that it had been duly probated in Tennessee, where it was executed, and where the testator died. The evidence shows that the will had been probated in the circuit court of Story county, but the defendants insist that it had not been properly probated, and they set up such fact in a cross-petition, and ask that the court set aside the probate. They claim that they bring themselves under section 2353 of the Code, which contemplates that, where a foreign will is probated in this state, the probate may, for sufficient cause, be set aside by an original action--precisely for what cause, the statute does not point out. The probate of a will might be set aside so far as it concerned real estate in this state, if not executed in accordance with the law of this state. Lynch v. Miller, 54 Iowa 516, 6 N.W. 740. The foreign court could not be supposed to have made any adjudication upon such a question. Whether the foreign adjudication should be deemed conclusive in respect to the testator's testamentary capacity, or in respect to the absence of undue influence, we need not determine. The defendants' allegations in respect to a want of such capacity, and in respect to undue influence, are, as we have seen, not-sustained by the evidence. Whether the record of the Tennessee court is duly authenticated, we need not determine, because no objection is made to the authentication. The only objections made, aside from undue influence and want of testamentary capacity, pertain merely to the mode of proceeding in the Tennessee court. The objections are that the will was probated without notice to the parties interested, and upon examination of only one of the subscribing witnesses.
As to the alleged want of notice, we have to say that it is not shown affirmatively, either that there was a want of notice, or that notice was necessary. The authenticated copy of the record introduced shows the will, and the action of the court in probating the same. Possibly, the evidence is not conclusive. But it is the evidence, we think, contemplated by the statute, Code, section 2351, and if so, it is sufficient, in the absence of any evidence to the contrary.
The fact that the will was proved by only one of the subscribing witnesses cannot affect the probate. It would at most be a mere irregularity, and we cannot assume that it was even that. On the contrary, where the courts of a sister state have jurisdiction, their mode of procedure will be presumed to be regular. Ward v. Baker, 16 Kan. 31.
We reach the conclusion, then, that there is no valid objection either to...
To continue reading
Request your trial