Wood v. Wood (In re Wood's Estate)
| Decision Date | 20 June 1931 |
| Docket Number | No. 40846.,40846. |
| Citation | 213 Iowa 254,237 N.W. 237 |
| Parties | IN RE WOOD'S ESTATE. WOOD v. WOOD. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; Miles W. Newby, Judge.
Proceeding for probate of will of George Baker Wood, deceased. The case was submitted to a jury who found for contestant. Proponent appeals.
Affirmed.Naglestad, Pizey & Johnson, of Sioux City, and J. M. Parsons, of Des Moines, for appellant.
R. B. Pike and Larned F. Brown, both of Sioux City, for appellee.
[1] The purported will filed in the office of the clerk for probate is dated December 3, 1927, and is all in typewriting except the purported signatures of the testator, George Baker Wood, and the two subscribing witnesses, Floyd O. Greene and Howard B. Fislar. It is identified as Exhibit A. It bequeaths to testator's sister “Miss Eva W. Wood One Dollar” and the residue to testator's wife, Eva M. Wood, the proponent. The instrument filed for probate, Exhibit A, was found in the safe of decedent. During the trial proponent produced a carbon copy of the instrument filed (identified as Exhibit B), which she testified was given to her by decedent. This carbon copy purported to be executed in the same manner and witnessed by the same persons as the instrument filed. The court submitted both instruments to the jury for them to determine whether either of them was executed by the testator and witnessed by the purported subscribing witnesses as required by statute. Proponent's main proposition here is that the verdict is not sustained by sufficient evidence. The burden of proof is on her. She rested her case upon the testimony of the two purported subscribing witnesses, Greene and Fislar, and a number of experts whose testimony was based upon comparison of signatures.
[2] About the date of the instrument offered for probate, Fislar, who was then associated with Greene in the real estate business, having an office on the same floor with decedent, prepared on the typewriter for decedent's execution a will, the contents of which does not appear. No witness testifies to personal knowledge of the execution of either instrument in question by testator or to the subscription of either witness thereto. Fislar testifies that:
The signature of his name to neither instrument is his, “but it looks very much like it.” “I am sure that (his purported signature to the instrument filed) was not written by me. The name Howard B. Fislar appearing on Exhibit B is not my signature. I did not typewrite Exhibit A or Exhibit B, and do not know who did typewrite them. * * *
“Q. You knew Dr. Wood's signature didn't you? A. I was quite well acquainted with his signature.
Q. And you would say that is his signature that appears on this will, or Exhibit A? A. I couldn't say exactly as to that.
Q. Well, it is your best judgment it is? A. It looks very much like his signature.
Q. Don't you believe it is Dr. Wood's signature that appears on Exhibit A? A. I do not know.
Q. If it was Dr. Wood's signature appearing there the will was all right wasn't it? A. If this was.
Q. Yes. A. No, sir. * * * I never saw Exhibit A or Exhibit B until they were shown to me here on the stand today. I did not typewrite either Exhibit A or Exhibit B and did not sign either of them. I prepared a form of will for George Baker Wood, and as I remember, it was in the early part of December, 1927. I obtained Mr. Greene's signature upon the form I prepared in our office. * * * At the time I asked Mr. Greene to sign, Dr. Wood had not signed. * * * George Baker Wood was not present. Mr. Greene signed at my request, and at the time he signed there were no signatures upon this form of will. * * * George Baker Wood was not present in any of our office rooms at the time Mr. Greene signed. * * * There was no connection between our office and Dr. Wood's office. I did not sign this form of will as a witness while Mr. Greene was in the office with me; but put by signature to it after he had gone, and at that time there was no other signature on it except that of Mr. Greene. I then took the will and went to the doctor's office with it, perhaps fifteen minutes later. * * * I handed the document over to the doctor and asked him to look it over and see me later, to which he said ‘all right.’ He took it and at that time it had my signature and Mr. Greene's on it, but no signature of George Baker Wood. * * * The doctor had told me that he was going away that evening to the coast, and I think he went. I did not see him again until about the first of March, 1928. Dr. Wood did not at any time mention to me that the signature George Baker Wood on Exhibit A was his signature. He never said anything to me about the signature George Baker Wood on Exhibit A. * * * He never said anything to me about a signature George Baker Wood on any form of will being his signature. He never had any conversation with me about the paper I handed him that afternoon, either at the time or after I had handed it to him; and never talked to me about that paper after he returned from the west or at any time during his life. I do not know what he did with the form of will I turned over to him. * * * The reason I know that Exhibit A is not the form of will which I prepared for Dr. Wood is that I used a legal size sheet of paper and not a letter head, in drawing the will. Another thing, I never had green ink in my office. I always used black ink, and these exhibits are signed in green; also I used a revoking clause in the form of will I drew, a clause revoking any prior wills that had been drawn or executed prior to this one. Such a clause is not present in Exhibit A. I also notice that the sister's name is wrong. I was very careful to get the names correct in that will. * * *
Q. Give the court and jury your best judgment as to whether or not that is the signature of Floyd O. Greene. A. I couldn't say. * * *”
Greene testifies:
“The name Floyd O. Greene on the paper marked Exhibit A looks like my signature. As to my judgment as to whether or not it is my signature, the only thing I could say is that it looks like it.
Q. What is your best judgment as to whether you signed that? A. Well, that day, that afternoon, if I remember.
Q. No you can just answer that if you will. A. Well, it looks like I signed it. * * *
Q. Well, according to your judgment, independent of this, wouldn't you say that was about the time it was signed by you (December 3, 1927)? A. Well, I don't just remember. I know it was December, the fore part of December, 1927. I couldn't swear to the signature of my former partner, Howard B. Fislar on Exhibit A. It looks similar to his handwriting. I am not acquainted with Dr. Wood's handwriting at all, and could not say as to his signature on Exhibit A. * * * I did not sign up another instrument similar to Exhibit A at the same time, to my knowledge. I would say that my name on Exhibit B looks like my handwriting; but I do not remember signing but one paper. I do not remember signing Exhibit B. * * * I am not familiar with Dr. Wood's writing and couldn't swear that his name on these exhibits was his signature. I did not see Fislar sign these exhibits. * * *
Q. Is this the first time, Mr. Greene, that you have seen Exhibit A? A. This is the first time.
Q. Today? A. Today.
Q. I mean, Mr. Greene, is this the first time you have seen Exhibit A in the completed form, that is with the signatures on it? A. This is the first time excepting the day. That looks like my handwriting. I signed it up at the office. I guess I didn't pay much attention to it.
Q. But, Mr. Greene, did you ever see a signature purporting to be Howard B. Fislar's on the document which you have described, before it was handed to you here today? A. No. Sir. * * * The day on which I was asked to sign a piece of paper upon which there was typewriting, but no handwriting, was early in December, 1927. Since I have seen that document I can say it was December 3rd. On the day that I put my signature upon this piece of paper there were no signatures on it or handwriting prior to the time I placed my handwriting and signature on it. There was no handwriting purporting to be the signature of George Baker Wood and none purporting to be the signature of Howard B. Fislar. * * * Dr. George Baker Wood at no time ever mentioned to me that he had written his name and signature upon the piece of...
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