255 N.W. 684 | Iowa | 1934
The plaintiffs brought this action in equity, alleging that one L.B. Hepp had duly made and executed a will prior to his death on the 24th of September, 1931, and that same has been lost or destroyed. Plaintiffs set out a copy of the same, which they ask to be established as the lost or destroyed will of said Hepp, in lieu of the original, and that it be admitted to probate as the lost or destroyed will of said Hepp. Goldie Petersen, one of the defendants herein, filed a motion to transfer the cause from the equity docket to the law docket, and on the 4th of January, 1934, the court made an order that the same should be transferred to the probate court. Plaintiffs duly excepted, and hence this appeal.
The question involved in this appeal, therefore, is whether or not the court erred in transferring the cause to the probate docket.
That the jurisdiction of the probate court is separate and distinct from its ordinary law and equity jurisdiction, see Mollring v. Mollring,
In 28 R.C.L. p. 363, after discussing the English rule, the text says:
"In this country, all probate and testamentary matters have in most if not all of the states been by statute confided either to separate courts of probate, under different denominations, or a special jurisdiction over them has been vested in courts having jurisdiction also over other subjects."
That courts of chancery do not have any jurisdiction to establish a lost or destroyed will and that such jurisdiction belongs solely to the probate court, see Anderson v. Anderson,
In the case of Ewing v. McIntyre,
"The jurisdiction to admit wills to probate is now quite generally conferred upon probate courts, and in other states this extends to lost and destroyed wills, in some cases depending upon statutes expressly conferring such jurisdiction, in others, under general statutes authorizing the probate of wills and administration of estates. We are of the opinion that the weight of authority sustains the jurisdiction under such general statutes, notwithstanding the case of Buchanan v. Matlock, 8 Humph. [Tenn.] 390, 47 Am. Dec. 622, holds the contrary. Morningstar v. Selby, 15 Ohio 345, 45 Am. Dec. 579; Gaines v. Chew, 2 How. 619, 11 L. Ed. 402; Gaines v. Hennen, 24 How. 553, 16 L. Ed. 770; Waters v. Stickney, 12 Allen [Mass.] 1, 90 Am. Dec. 122; Clark v. Wright, 3 Pick. [Mass.] 67; Davis v. Sigourney, 8 Metc. [Mass.] 487; Happy's Will, 4 Bibb. [Ky.] 553; *514
Graham v. O'Fallon, 3 Mo. 507; Apperson v. Cottrell, 3 Port. [Ala.] 51, 29 Am. Dec. 239; Thornlin on Last Will, sections 5, 6. * * * Extended discussions of the subject will be found in several of these cases, especially Adams v. Adams,
In McCormick v. Jernigan,
"The only difference between the probate of a will which can be produced and one which has been lost is as to the nature and quantity of the evidence required to prove it. The jurisdiction to prove the will is not changed by its loss. No equitable element is involved. The setting up a lost deed is in the court of equity not because from the nature of the evidence it must be proven in that court, but because a decree was requisite for a reconveyance, or to enjoin a recovery by the grantor * * *. The probate of a will is a simple question of proof, and no additional matter is involved which requires it to be taken into the court of equity, as is the case with lost deeds, bonds, and negotiable papers."
It would seem, therefore, that the rule thus announced is more consistent with our previous holdings along this line than would be the contrary rule. We therefore conclude that this matter is not triable in equity, but is triable in probate. The question, however, as to the terms of the lost instrument is for the court in the first instance. If the court should find that the proof is insufficient to establish the terms of the lost instrument, the plaintiffs, of course, *515 must fail. If, on the other hand, the court finds that the lost instrument is properly proven and established, then the next question is whether or not the same should be admitted to probate as the last will and testament of the deceased. When this point is reached the matter stands as do all wills when they are offered for probate, — that is, the same is subject to contest on any of the recognized grounds of law, and if so contested may be tried to a jury. We think this marks out the simplest way of disposition of cases of this character. — Affirmed.
CLAUSSEN, C.J., and ANDERSON, MITCHELL, and KINTZINGER, JJ., concur.