Pierce's Estate, In re

• Decision Date: 17 November 1953
• Docket Number: No. 48326,48326
• Citation: 245 Iowa 22,60 N.W.2d 894
• Parties: In re PIERCE'S ESTATE.
• Court: Iowa Supreme Court

Page 894

60 N.W.2d 894

245 Iowa 22

In re PIERCE'S ESTATE.

No. 48326.

Supreme Court of Iowa.

Nov. 17, 1953.

Hamilton & Cahill, and Edward L. O'Connor, Iowa City, for objectors-appellants.

R. A. Rockhill, Marshalltown, for executor-appellee.

GARFIELD, Justice.

Frank G. Pierce, a resident of Marshalltown, Marshall county, died January 23, 1947, leaving a spouse and collateral heirs. His will bequeathed a life estate in all his property to his wife and subject thereto created a trust therein to assist boys and girls in Marshalltown to secure an education. The bank which was nominated executor in the will petitioned the district court for probate.

As authorized by section 633.20, Code, 1950, I.C.A. (all Code references herein are to that Code), the clerk of the district court prescribed notice of the time fixed for probate of the will by one publication in the Times-Republican, a daily newspaper printed in Marshalltown, and posting in three public places in Marshall county. Such notices were given. The will was admitted to probate and the bank named in the will was appointed executor February 8, 1947. Notice of appointment of executor was duly published in the Marshalltown Times-Republican.

The clerk's right to prescribe notice of probate is recognized in In re Will of McKinstry, 204 Iowa 487, 215 N.W. 497; In re Price's Estate, 230 Iowa 1228, 1235, 300 N.W. 542, 545; Hoover v. Hoover, 238 Iowa 88, 92, 26 N.W.2d 98, 100.

May 19, 1951, the executor filed its final report to which nine heirs (nephews, nieces, grandnephews and a grandniece) filed objections and 'petition for relief' which assert the order admitting the will to probate and the entire probate of the estate are void because it is said the published and posted notices of probate were insufficient to confer jurisdiction on the court and for other reasons. Following a hearing in August, 1952, the district court overruled the objections, denied the petition for relief and approved the final report. From this order objectors have appealed.

I. Objectors assign error in the trial court's holding the clerk's order for notice of probate did not violate due process of law because objectors' names and addresses were known or could easily have been discovered and they were entitled to better notice than one by publication and posting.

Objectors strongly rely upon Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, where a New York statute providing for notice by publication to beneficiaries of a common trust fund of a trust company's petition for settlement of its accounts is held to violate due process as to beneficiaries whose whereabouts are known. For discussion of the Mullane decision see Van Gundy v. Van Gundy, 244 Iowa ----, 56 N.W.2d 43, 45; Note by Marvin C. Hayward, 36 Iowa Law Review 47; Note 37 Id. 74.

We think the Mullane decision does not require a holding that the order for notice and likewise Code section 633.20 which authorizes such a notice, as well as the admission of the will to probate, were void for lack of due process. We perceive a vital distinction in effect between the decree rendered on published notice in the Mullane case and the order admitting this will to probate.

'The effect of this (Mullane) decree, as held below, is to settle 'all questions respecting the management of the common fund.' We understand that every right which beneficiaries would otherwise have against the trust company * * * for improper management of the common trust fund during the period covered by the accounting is sealed and wholly terminated by the decree.' At page 311 of 339 U.S., at page 655 of 70 S.Ct., at pages 871, 872 of 94 L.Ed.

The order admitting the Pierce will to probate has less far-reaching effect. Kelly v. Kelly, 158 Iowa 56, 59, 138 N.W. 851, 852, quotes this with approval from Lorieux v. Keller, 5 Iowa 196, 201, 68 Am. Dec. 696, 699: 'Rights of a party claiming a distributive share in his ancestor's estate are not concluded by the order of the court admitting the will to probate. Such party may still, by proper proceedings, have the question, of his right to a portion of his ancestor's estate, determined. The admission of the will decides no question but its due execution and publication.'

To the same effect see In re Will of Tinsley, 187 Iowa 23, 27, 174 N.W. 4, 11 A.L.R. 826, and citations; Maloney v. Rose, 224 Iowa 1071, 1075, 277 N.W. 572.

Kelly v. Kelly, supra, also states at page 61 of 158 Iowa, at page 853 of 138 N.W.: 'In short, the accepted doctrine in jurisdictions having statutes similar to our own appears to be that admission of a will to probate originally without contest is a preliminary order or judgment which effects a prima facie establishment of the instrument, and gives the court and executor authority to proceed with the administration and settlement of the estate, but does not operate to cut off the right of contest in an original action within the statutory period of limitation. This court is, as we have already seen, committed to that construction of the statute, * * *.'

The language just quoted is also found in In re Price's Estate, supra, 230 Iowa 1228, 1233, 1234, 300 N.W. 542, 545. It is also repeated in In re Estate of Huston, 238 Iowa 297, 303, 27 N.W.2d 26, 30, which holds an order of probate constitutes an adjudication the instrument is the will of decedent 'until set aside by an original or appellate proceeding' as contemplated by Code section 633.38. Kelly v. Kelly, supra, expressly overrules Gregg v. Myatt, 78 Iowa 703, 42 N.W. 461, 43 N.W. 760, which objectors cite several times. See also In re Price's Estate, supra, and Edwards v. Smith, 238 Iowa 1080, 1084, 29 N.W.2d 404, 406, 175 A.L.R. 1318, 1322.

The property right of which objectors say they were deprived without due process by the order of probate on published and posted notice is the right to contest the will. It is clear objectors were not deprived of such right by the order of probate--they could institute original proceedings to set aside the order at any time within two years from the time the will was filed for probate and notice therefor given. Code sections 633.38, 614.1, 614.3; In re Estate of Huston, supra, 238 Iowa 297, 299, 27 N.W.2d 26, 28; Blakely v. Cabelka, 207 Iowa 959, 966, 221 N.W. 451; Kelly v. Kelly, supra, 158 Iowa 56, 59, 138 N.W. 851. Such original proceedings are frequently resorted to by heirs dissatisfied with terms of a will.

We also see a clear distinction between the interests of the beneficiaries in the Mullane case and the interests of these objectors in the Pierce estate. The former were the equitable owners of the trust property. These objectors acquired no interest under the will. Their only interest in the estate was contingent upon successful contest of the will or at least the invalidation of the charitable trust in the remainder. The Mullane case says, 'Nor do we consider it unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future * * *.' At page 317 of 339 U.S., at page 659 of 70 S.Ct., at page 875 of 94 L.Ed.

Up to now we have upheld orders of probate upon published notice pursuant to our statute. Farrell v. Leighton, 49 Iowa 174: In re Will of Middleton, 72 Iowa 424, 34 N.W. 193. See also Blakely v. Cabelka, supra, 207 Iowa 959, 966, 221 N.W. 451; Edwards v. Smith, supra, 238 Iowa 1080, 1084, 1085, 29 N.W.2d 404, 406, 175 A.L.R. 1318, 1322. These decisions accord with many in other jurisdictions. 57 Am.Jur., wills, § 837, says, '* * * personal service of process upon all parties interested is not essential to jurisdiction. Effective notice may be given by publication.' To the same effect is 68 C.J., Wills, § 713; 2 Page on Wills, Lifetime Ed., § 597, page 126; In re Sieker's Estate, 89 Neb. 216, 131 N.W. 204, 35 L.R.A.,N.S., 1058, and Notes 1058-1060; Matter of Horton's Will, 217 N.Y. 363, 111 N.E. 1066, Ann.Cas.1918A, 611.

To set aside as void the admission of this will to probate on the ground that published and posted notice, as authorized by Code section 633.20, violated due process would put in jeopardy countless similar orders and real estate titles. Obviously we should not reach a decision with such far-reaching implications unless objectors' right thereto is clear. See In re Price's Estate, supra, 230 Iowa 1228, 1235, 1236, 300 N.W. 542, 546.

We hold admission of a will to probate on published notice pursuant to Code section 633.20 is not a violation of due process.

II. It is contended the order for notice of probate is void because it is said not to have been entered on the records of the court and rule 227, Rules of Civil Procedure, 58 I.C.A., requires such entry. It is sufficient answer to this contention that it does not appear the order was not so entered. See in connection with this claimed error Hoover v. Hoover, supra, 238 Iowa 88, 91, 26 N.W.2d 98, 100.

III. Objectors' errors 2, 3, and 4 attack as void for various reasons a probate order made in August, 1947, authorizing the executor to bring suit for declaratory judgment construing the will and the decree therein (July, 1948) upholding the validity of the charitable trust. We consider the principal contentions urged in somewhat different order than that followed in the arguments.

The executor was apparently in doubt as to the validity of the charitable trust in the remainder of the estate and deemed it necessary to seek a declaratory judgment respecting it. The probate court authorized such an action and the executor brought it in equity. In late January and early February, 1948, eight of the nine objectors were personally served in this state with original notice of the action. Several objectors then consulted Mr. Tye, an experienced Marshalltown attorney whose firm appeared for six of the objectors in the construction action and made defense thereto.

Objectors contend the original notice in the...