Ransom v. Sigler (In re Bybee's Estate)

• Decision Date: 15 January 1917
• Docket Number: No. 31122.,31122.
• Citation: 179 Iowa 1089,160 N.W. 900
• Parties: IN RE BYBEE'S ESTATE. RANSOM ET AL. v. SIGLER ET AL.
• Court: Iowa Supreme Court

179 Iowa 1089

160 N.W. 900

IN RE BYBEE'S ESTATE.RANSOM ET AL.

v.SIGLER ET AL.

No. 31122.

Supreme Court of Iowa.

Jan. 15, 1917.

Appeal from District Court, Pottawattamie County; E. B. Woodruff, Judge.

Mary Ransom and Amasa Bybee applied for an order to probate an alleged will of Ann Bybee. The application was denied, and proponents appeal. Reversed.Killpack & Northrop and C. E. Swanson, Co. Atty., all of Council Bluffs, for appellants.

F. W. Miller, of Council Bluffs, for appellees.

SALINGER, J.

I. [1] The brief for appellee has 76 pages, and strongly and exhaustively presents many questions. We are of opinion that, while all these were all pertinent before the decision appealed from was made, but one, by possibility two, need our consideration. No doubt, many of the matters now argued would have been material if the court below had merely made an order declining probate; for such order would be presumed to pass upon every issue presented. But, of course, when the record shows affirmatively that none but stated questions were decided, the aforesaid presumption has no room to operate. We cannot review what has never been decided. The trial court ruled:

“Now, as to the question of adjudication and estoppel, I don't think that it is necessary for this court to determine those questions, because the question that I have determined ends this case as far as this court is concerned.”

In our view of the record, the only question that remains for us to pass upon is whether the paper offered for probate does lack the required formalities of a will, and required attestations. The appellee contends for many things as being essential and necessary formalities of a last will, and to the witnessing of the same. We think it will conduce to clarity if, instead of inquiring whether all that appellee demands is required, we proceed to state what formalities, attestations, and witnessing is in our opinion necessary, and then to say whether any of these are lacking here.

II. We glean from an examination of an abstract, additional abstract for appellee, an amended additional abstract for appellee, the brief for the appellee, the original brief for appellant, and the one filed in reply, that the instrument proposed for probate and rejectedhad the caption, “Warranty Deed.” The body of it is in the ordinary form of warranty deeds, with covenant of perfect title, authority to convey, freedom from liens and incumbrances, and a covenant to warrant and defend title. It purports to be made to the county of Pottawattamie in consideration of $1 and certain provisions named in the title. It contains this clause:

“This indenture to be effective after my death on the condition that Pottawattamie county, Iowa, pay any debts that I may be owing at that date, and pay my funeral expenses, if any, and said land to be sold, and balance of said amount to be used for the benefit of the poor of said county.”

In connection with the signature of the grantor is, “Witness to signature, John A. Ransom.” It purports to have been signed on the 7th day of January, 1909.

In the appropriate place for acknowledgment of the paper is this:

“State of Iowa, Pottawattamie County--ss.: On the 7th day of January, A. D. 1909, before me a notary public within and for said county personally came Ann Bybee (widow), personally known to me to be the identical person whose name is affixed to the above instrument, a legal grantor thereunder, and acknowledged the execution of the same to be her voluntary act and deed, for the purposes therein expressed. Witness my hand and notarial seal.”

The signature of N. Swanson follows. We understand the trial court to hold that this instrument cannot be probated because it is not witnessed as wills are required to be. “That it lacks the formalities necessary to make it a will.”

The only requirement the statute makes is found in section 3274 of the Code of 1897, and is that the paper shall be signed by the testator “and witnessed by two competent persons.” We do not understand that the competency of these witnesses is challenged, if there be two “witnesses,” in contemplation of law.

[2][3][4] The alleged testatrix signed a paper purporting to convey land upon condition that the conveyance should not take effect until after her death. The law declares that this is not a conveyance, but a testamentary paper. It is of no consequence what she thought was the legal effect of it. The law settles its status and declares what it is. It need not be proved that the testator read over the will before signing, or was informed of its contents. Scott v. Hawk, 107 Iowa, 723, 77 N. W. 467, 70 Am. St. Rep. 228. It is only when the terms of the writing are not clear that collateral evidence may be received to ascertain its intent. In re Longer, 108 Iowa, 37, 78 N. W. 834, 75 Am. St. Rep. 206. Otherwise, the intent will be gathered from the instrument itself. Wilson v. Carter, 132 Iowa, 442, 109 N. W. 886.In re Longer, 108 Iowa, 37, 78 N. W. 834, 75 Am. St. Rep. 206, cites from In re Lautenschlager, 80 Mich. 285, 45 N. W. 147, that:

“An instrument in the form of a deed, but executed with the formalities of a will, and by its terms to take effect after death, has been held a will.”

And a paper stating, “I agree to will,” may be a will. In re Longer, 108 Iowa, 34, 78 N. W. 834, 75 Am. St. Rep. 206.

[5] If what the testator does sign proves to be what the law declares is a testament, and witnesses duly attest it, they have attested a will, though neither the testator nor the witnesses knew that the law declared the writing to be a will. As bearing upon this thought, it has been held that, where the will is witnessed, there is a conclusive presumption it was signed before it was witnessed; that, such being the fact, “it was executed with all the formality required by the statute”; that it is unnecessary that witnesses should see the testator subscribe the will, nor necessary that testator should state to the witnesses the character and purpose of the instrument which they witness (In re Hulse, 52 Iowa, 662, 3 N. W. 734; Snellbaker v. Snellbaker, 155 Iowa, 390, 136 N. W. 223); and that a testator need not declare the instrument to be his last will (Scott v. Hawk, 107 Iowa, 723, 77 N. W. 467, 70 Am. St. Rep. 228).

[6][7][8] An attestation clause is not essential. Hull v. Hull, 117 Iowa, 738, 89 N. W. 979; Snellbaker v. Snellbaker, 155 Iowa, 390, 136 N. W. 223. In the absence of statute, it is not necessary that the witnesses attest in the presence of each other. Hull v. Hull, 117 Iowa, 738, 89 N. W. 979. It is immaterial that witnesses write their names in the body of the will (Franks v. Chapman, 64 Tex. 159), or in what particular part of the will they subscribe their name (Murray v. Murphy, 39 Miss. 214). As said, the only requirement which the statute makes in terms is that the paper shall be signed by the testator and signed by two competent persons.

[9] The law declares that this paper is testamentary. It is signed by the one professing to dispose. On the same side of the paper where the alleged testator signs, John A. Ransom signs as a witness to signature. Had there been another competent...