Tomin's Estate, In re

• Decision Date: 11 July 1967
• Docket Number: No. 52514,52514
• Citation: 152 N.W.2d 286,260 Iowa 1129
• Parties: In the Matter of the ESTATE of Philip TOMIN, Deceased.
• Court: Iowa Supreme Court

Page 286

152 N.W.2d 286

260 Iowa 1129

In the Matter of the ESTATE of Philip TOMIN, Deceased.

No. 52514.

Supreme Court of Iowa.

July 11, 1967.

Margaret E. Santee, Cedar Falls, for appellant.

Wirt P. Hoxie and Max R. Teske, Waterloo, for appellee.

LARSON, Justice.

A purported will of Philip Tomin, deceased, was filed in the probate court of Black Hawk County on February 4, 1965, by Jennie Sherman, the sole beneficiary and the named executrix therein. Hearing thereon was set for February 15, 1965. Plaintiff-contestant filed written objections to the probate and, after some delay and counsel changes for contestant, trial was had to the court which resulted in an order admitting the will to probate. Plaintiff's motion for a new trial was overruled and she appeals.

Only two issues are presented by this appeal. The first is whether, under the circumstances revealed, the trial court erred in refusing to grant the request of plaintiff's present counsel for a continuance, and the second, whether the court erred in ruling as a matter of law that plaintiff had failed to prove the revocation of the will offered for probate.

At the commencement of this trial proponent offered into evidence, as Exhibit A, a will executed by Philip Tomin on March 26, 1924, together with various depositions taken to establish its execution. They were admitted into evidence without objection, and proponent rested. Plaintiff-contestant's evidence was followed by proponent's motion to dismiss, which was sustained. In her motion for a new trial plaintiff complained of the refusal to give her most-recent counsel adequate time to study the record and prepare for trial and claimed 'there were discoveries which would be material in the promotion of justice and which would require a diligent search.' What these discoveries were does not appear. A little more time might have been granted plaintiff's present counsel to make her own investigations and preparations, but we are not convinced the trial court abused its discretion in refusing a further continuance or that anything has been revealed which would justify granting a new trial in this matter.

I. Before we consider the facts disclosed by the record, reference should be made to two well-established rules of law which appear applicable here, i.e., that a motion for continuance is addressed to the sound discretion of the trial court and this court will not interfere with a ruling thereon unless it clearly and affirmatively appears there has been an abuse of such discretion and injustice thereby done (State v. One Certain Automobile, 237 Iowa 1024, 1027, 23 N.W.2d 847, and citations), and that there is no reversible error or prejudice to the parties where it appears in a trial to the court that the prevailing party would have been entitled to a directed verdict even if the trial had been to a jury (Brown v. Schmitz, 237 Iowa 418, 423, 424, 22 N.W.2d 340, and citations).

II. Philip Tomin died January 30, 1965, at the age of 76 years. He had lived in the Sherman residence for over 53 years. He had been a business associate of Mr. Sherman prior to Sherman's recent death. Mrs. Sherman's daughter Ruth and her husband M. F. Blindman, also lived in this home and had assumed the task of caring for the needs of both Philip Tomin and Mrs. Sherman. After the death of Philip, the Blindmans examined the contents of his room and in a dresser drawer found a will purportedly executed March 26, 1924, which left all decedent's property to Mrs. Sherman. They found no other will. Mamie Temin Abramson, the plaintiff-contestant, J. T. Temin, Edward Temin, and Hy Temin, are adult children of decedent's brother and were not mentioned in this will. More unhappy than the others, the plaintiff appeared and filed objections to probate and made demand for a jury trial on the issues raised in her petition, which prior to amendment were undue influence and improper execution.

On April 10, 1965, the defendant-proponent filed her answer and general denial. On May 18, 1965, she applied to the court for authority to join J. T. Temin, Edward Temin, and Hy Temin, nephews of deceased, as parties-defendant, and the same was granted. On November 9, 1965, default was entered as to these additional defendants.

On or about July 1, 1965, plaintiff's original counsel, Peter W. Burk, was granted leave of court to withdraw from the case, and from then until January 28, 1966, plaintiff was without counsel of record. On February 21, 1966, Mr. Dallaire, plaintiff's new counsel, filed an amendment to her petition which alleged that a more-recent will of Philip Tomin, illegally procured by M. F. Blindman, revoked the 1924 will, and also filed a motion for a continuance. In the meantime on December 28, 1965, on proponent's application, the court had set a pretrial conference for January 10, 1966. On January 11, 1966, contestant, unrepresented, requested a 90-day delay in the pretrial conference, which was denied by the court. On January 7, 1966, proponent requested that a hearing be had on January 17, 1966, to compel contestant to answer certain interrogatories filed December 29, 1965, by proponent. The trial of the main case was then set for February 23, 1966. However, on February 21, 1966, Mr. Dallaire also filed a motion to withdraw as plaintiff's counsel, which was granted by the court although only two days remained before the date set for the trial. Plaintiff then failed to appear for trial on February 23rd, and two days later the court found she had been dilatory and negligent in prosecuting the case and had needlessly obstructed the process of the court. However, being aware of counsel's late withdrawal, it did not default plaintiff but granted her the opportunity to obtain other counsel and, with the condition that the case be tried to the court without a jury, trial was reset for March 23, 1966.

On March 23, 1966, Attorney Margaret E. Santee entered her appearance on behalf of plaintiff. She was then advised by the court that no further continuance could be granted. Nevertheless, on March 23rd plaintiff and her counsel appeared for trial and, pursuant to an oral motion for a continuance which was overruled, the case then proceeded to trial. It was concluded April 4, 1966, after a written motion for a further continuance, supported by affidavit, was overruled. Defendant's motion to dismiss plaintiff's petition was then sustained. Plaintiff's motion for a new trial was overruled and decedent's will of March 26, 1924, was admitted to probate.

III. Appellant contends she showed clearly and affirmatively that the court abused its discretion in refusing to grant a further continuance on March 23, 1966, and that an injustice was thereby done. We cannot agree. While plaintiff was a resident of Shreveport, Louisiana, and far removed from Waterloo, Iowa, she had promptly retained counsel to commence this action and was represented by this counsel for approximately five months. It is fair to assume counsel did investigate the circumstances in this rather simple contest and was convinced it lacked proof of any misconduct on the part of proponent or her family. Thereafter plaintiff did nothing toward obtaining new counsel or in prosecuting her action for approximately six months. Only after proponent pressed for a pretrial conference in December of 1965 did she indicate any interest in the case, and even then did not obtain another counsel. She merely asked for a 90-day delay of that conference. We it was denied, she did not appear, did not answer interrogatories and, when her second counsel withdrew, did not appear for the trial on February 23, 1966. There is little doubt in our minds that the court's finding of neglect and a lack of diligence in prosecuting this case was justified. While present counsel had little time to prepare for this trial, she did consult with and had the benefit of the investigations and efforts of the two former plaintiff attorneys. She admits they briefed her as to any evidence they had which would tend to support the allegations of plaintiff's petition. We believe Miss Santee did a credible job in obtaining and presenting every scintilla of evidence which would support plaintiff's suspicion that decedent executed another will or that defendant and members of her family might have found and destroyed a subsequent will of decedent, this being the thrust of her contention on this trial.

Appellee contends plaintiff's oral motion for a continuance of the date set for the trial failed to company with Rules 182(a) and 183(b), Rules of Civil Procedure, and we must agree.

Rule 182(a) provides: 'Motions for continuance shall be filed without delay after the grounds therefor become known to the party or his counsel. * * *'

Rule 183(b) provides: 'All such motions based on absence of evidence must be supported by affidavit * * * and must show: (1) * * * (2) what efforts, constituting due diligence, have been made to obtain such witness or his testimony, and facts showing reasonable grounds to believe the testimony will be procured by the next term; (3) what particular facts, distinct from legal conclusions, affiant believes the witness will prove, and that he believes them to be true and knows of no other witness by whom they can be fully proved. * * *'

Appellant made no attempt to show that she used diligence to ascertain testimony tending to prove any other will execution, and no facts were stated in the motion or affidavit which showed reasonable grounds to believe testimony relating to any other will can be procured in the future. In fact, there is no showing such evidence is available or exists. It would thus appear that appellant failed to comply with Rules 182(a) and 183(b) and, under the circumstances, this itself affords sufficient basis for the denial of a continuance. State v. One Certain Automobile, supra, 237 Iowa 1024, 1027, 23 N.W.2d 847; Twaites v. Bailly, 210 Iowa 783, 785, 231 N.W. 332; Gaynor...