Repp's Estate, In re
| Citation | 40 N.W.2d 607,241 Iowa 190 |
| Decision Date | 10 January 1950 |
| Docket Number | No. 47512,47512 |
| Parties | In re REPP'S ESTATE. |
| Court | United States State Supreme Court of Iowa |
Hugh W. Lundy, of Albia, and Campbell & Campbell, of Newton, for appellant.
Alfred M. Pabst, of Albia, for appellee.
On May 24, 1948, there was filed in the office of the clerk of the district court of Monroe county an affidavit of death of Ivan L. Repp, who died on May 22, 1948, and an instrument purported to be the last will and testament of the said Ivan L. Repp. The will was dated January 5, 1948, but was executed February 14, 1948, and provides for the payment of debts, funeral expenses, and costs, and the appointment of executor. It provided that the receipts from the sale of his property be divided proportionally among various persons named, being nephews and nieces, and grandnephews and grandnieces, and provided for the distribution of specific articles of household and personal property. The will was signed by the testator and bore an attestation clause signed by M. C. Lowenberg and Betty E. Hersman, which clause will be referred to hereafter.
Elmyra L. McLaughlin filed in said office objections to admission to probate of the purported will of Evan L. Repp, deceased. Reciting, among other things, that the sole and only heirs of deceased are certain brothers and sisters named, together with the objector; reciting that decedent was unduly influenced in the making of said instrument. The objections further state that the instrument offered for probate and ask that the admission of the will to probate be denied.
The case was tried to a jury who, on December 16, 1948, returned a verdict admitting the will to probate. Thereafter contestant filed a motion for judgment notwithstanding verdict, and also a motion for new trial. Motion for judgment notwithstanding verdict was overruled; motion for new trial sustained, and the verdict of the jury set aside and new trial ordered. From the order of court granting a new trial the proponent, Cal Repp, appeals.
At the trial the only issue was the contestant's claim that the will was not properly witnessed. There was no issue nor question that the decedent did not sign the will, and there was no issue that the two witnesses did not sign the certificate of attestation. The attestation certificate, as set out, contained recitals of all facts necessary to constitute the due execution and witnessing of the will. The claim of the proponent is that this certificate of attestation made a prima facie case for proponent, furnishing a presumption of fact that the recitals contained in it were true.
M. C. Lowenberg, engaged in real estate business, had an office in Albia, and in January Ivan Repp came to his office bringing with him notes as to the disposition of his property and Lowenberg undertook to prepare a will embodying Repp's wishes. He testified that he prepared such a will and that on February 14th Repp came to his office to sign the will; that there was no one in the office except Repp and Lowenberg and that the latter went to a nearby office and requested Betty E. Hersman, employed there, to come to his office and act as a witness; that the witnesses on the same occasion and in his presence both signed as witnesses on or about the 14th day of February, the date of the attestation certificate. Betty E. Hersman, however, testified that she came to Lowenberg's office, saw the decedent at the desk, saw Lowenberg hand the decedent the pen, saw the decedent place the pen in proper position on the paper to be signed, saw his hand shaking but never saw the signature. She testified that she was called to her own office by the ringing of her telephone, was not back in Lowenberg's office that day, and that she did not sign the instrument that day, nor in the presence of decedent. She testified further that some weeks or months later Lowenberg came to a filling station near here place of residence; that she was called out and that she signed the paper there in the presence of Lowenberg, and that the decedent was not present at that time. This testimony was in contradiction to part of Lowenberg's testimony.
The testimony of two other witnesses was introduced, who were alleged to have been in the neighorhood, in support of Mrs. Hersman's testimony, but neither testified directly to seeing her sign any paper, though one saw a paper in Lowenberg's hand.
The case being submitted to the jury, they found for the proponent.
I. The principal ground of the motion for new trial was that the court erred in refusing to allow the witness, Mrs. Hersman, to testify to the conversation between her and Lowenberg at the time and place she claims that the will was signed by her as a witness--months after the decedent had signed it and not in the presence of decedent. The objection made by the proponent to this testimony was that it was hearsay, not in the presence of the decedent, and the court sustained the objection and the exclusion of the testimony. After a hearing on the motion for new trial the judge suggested that he might have made a mistake when he excluded the testimony.
On the motion for new trial the court held that the testimony of Betty E. Hersman should have been admitted in evidence at the trial. She testified there that she did not sign the will in the presence of the testator at the time and place where he signed; that she signed it weeks later at or near a filling station adjacent to her home. Counsel for contestant asked: A. 'Yes, I did ask him.' Counsel: 'What did you ask him?' Counsel objected to this question as calling for hearsay, not in the presence of the alleged testator. The court sustained the objection, and contestant excepted to the ruling. It is claimed by proponent, and conceded in argument by the contestant, that the trial court based its ruling, in part at least, granting a new trial, on the ground that the ruling on the foregoing testimony of Betty E. Hersman was incorrect.
In support of his assigned error proponent argues that the evidence heretofore set out was as to the statements made by attesting witnesses between themselves, not in the presence of the testator, and was therefore hearsay offered in proof of the facts recited. He alleges that under the instructions of the court, which became the law of the case, not being excepted to, the trial court held that in order to uphold the will it must be found that witnesses signed in the presence of the testator.
An instruction of the court was:
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