Smith v. James

• Decision Date: 10 May 1888
• Parties: SMITH ET AL. v. JAMES ET AL.
• Court: Iowa Supreme Court

74 Iowa 462

38 N.W. 160

SMITH ET AL.

v.JAMES ET AL.

Supreme Court of Iowa.

May 10, 1888.

Appeal from district court, Pottawattamie county; I. P. CONNER, Judge.

This is an action to cancel and set aside the last will and testament of Jacob Smith, deceased, upon the ground that said decedent did not have mental capacity to make a will, and because of the alleged fraud and undue influence of the defendants and others. The defendants answered, in substance, that the said will was presented to the circuit court for probate, and that the plaintiffs appeared in said court, and filed written objections thereto, based upon the same grounds as are alleged in the petition in this case, that issue was joined thereon, a jury was waived, and there was a full trial, and the court found against the plaintiffs herein on the issues, and admitted the will to probate. A demurrer to the answer was sustained, and defendants appeal.Flickinger Bros., for appellants.

ROTHROCK, J., ( after stating the facts as above.)

The proceedings set up in the answer were a contest of the will under section 2340 of the Code, which is as follows: “After the will is produced and read, a day shall be fixed by the court or clerk for proving the same, which day shall be during a term of court, and may be postponed from time to time, in the discretion of the court. Whenever the proving of a will is contested, either party shall be entitled to demand a jury, and to the verdict of the jury on the issues involved.” That part of the section in italics was enacted as an amendment, by chapter 11 of the Acts of the Sixteenth General Assembly. Before this amendment was made, the proceedings in relation to contesting wills were prescribed by the original section above quoted, and by section 2353, which provides that “wills admitted to probate, and proven as hereinbefore directed, shall be conclusive as to the due execution thereof until set aside by an original or appellate proceeding.” Before the amendment to section 2340 it was held that an original action would be maintained to set aside the probate of a will where no appearance had been entered or contest made. Leighton v. Orr, 44 Iowa, 680; Gilruth v. Gilruth, 40 Iowa, 348. In the last-named case, it was said that the original action contemplated by section 2353 is “for the purpose of giving contestants the right of trial by jury.” We think it is quite clear that as the plaintiffs appeared when the will was offered for probate,...