Tuttle v. Wood

• Citation: 88 N.W. 1056,115 Iowa 507
• Parties: TUTTLE v. WOOD ET AL.
• Decision Date: 01 February 1902
• Court: United States State Supreme Court of Iowa

115 Iowa 507

88 N.W. 1056

TUTTLE

v.WOOD ET AL.

Supreme Court of Iowa.

Feb. 1, 1902.

Appeal from district court, Wayne county; W. H. Tedford, Judge.

Plaintiff began an action against Wm. D. Wood July 5th, 1899, and caused certain land devised to him by his father, Jeremiah Wood, to be attached. The interveners, children and grandchildren, as residuary legatees under the will, filed a petition of intervention, alleging that said William, an unmarried man, left his home about 15 years previous, and had not been heard from for more than 7 years prior to the death of his father. The issue tried was whether William died before the testator. The jury found he did, the court dissolved the attachment levy, and plaintiff appeals. Affirmed.R. C. Poston, for appellant.

Miles & Steele, for appellees.

LADD, C. J.

The testator, Jeremiah Wood, died in August, 1898; and, of course, if his son Wm. D. departed life before that time, he did not take the land attached under the will or as heir. Unmarried when he left home in 1878 or 1879, and when last heard from, that status will, in the absence of any showing to the contrary, be presumed to have continued. No direct evidence of his demise was introduced. The interveners relied solely upon the presumption of death arising from absence from home without intelligence concerning him for the period of more than seven years. Sherod v. Ewell, 104 Iowa, 253, 73 N. W. 493;Burr v. Sim, 4 Whart. 150, 33 Am. Dec. 50. Their evidence tended to show that they had heard from him frequently after he left his home in Wayne county until 1887. During this period he had written from Montana, Idaho, Oregon, and Mexico, and the last letter came from a hospital in San Francisco. He had been afflicted since boyhood with what is commonly known as a “white swelling,” for which he had undergone several operations, was addicted to the use of intoxicating liquors, and was not strong physically. This was met by proof that William was involved financially when he left home, and the testimony of one Blagg that he had seen a man at Central City, Neb., six years previous, who had declared he was not a son of Jeremiah Wood, but whom the witness, who had known William prior to his departure, finally concluded was that person, though larger and younger than described at the trial. It appeared that William had dealt in stock during the first two years after he left Iowa, at Helena; that he sometimes drove cattle and horses to Idaho for sale, and was for a few months employed on a ranch near Helena. The appellant insists that he had established a domicile in Montana, and absence therefrom, rather than from his Iowa home, should be considered in passing upon the probability of his death. It is to be noted that all the indicia ordinarily resorted to in order to prove domicile were wanting, to wit, declarations to that effect, the exercise of political rights, payment of personal taxes, a place of residence or of business, etc. At most, this was a question for the jurors; and they were told, if they found “from the evidence that said Wm. D. Wood had any fixed and permanent home after he left his father's home in this county, then the absence of seven years, before defined, must have been from such permanent and fixed residence. But if you find that the said Wm. D. Wood had no permanent and fixed home elsewhere than in Wayne county that would be strictly termed a ‘permanent home,’ or if you find from the evidence that he traveled from place to place, remaining at no one...