160 Iowa 210 | Iowa | 1912
Peter Fillenwarth died, testate, April 10, 1908. His will, which wras duly admitted to probate, bequeathed $5 each to his sons, Frank and John, and his daughter, Caroline, and directed that a fourth of the residue be given to each of the above-named children, and the remaining fourth to Floyd and Leland, sons of Peter Fillenwarth, Jr. He had distributed to these and others of his children nearly $40,000 prior to his death, and some securities reached the hands of the administrator with the will annexed, who brought this suit against John Fillenwarth, a son of deceased, alleging in counts 1 ar.d 2 of the petition that defendant, subsequently to decedent’s death, converted to his own use twm certificates of deposit, issued by the First National Bank of Britt, of $500 each; in count 3, that he had appropriated to his own use $760 in cash; in count 4, that about March 2, 1908, defendant received the cash on six certificates of deposit, issued by the same bank, of $500 each to decedent, amounting to $3,150, and, on pretense of borrowing same, gave decedent his notes of $1,500 and $1,650, respectively; and that deceased at such time, and when other transactions occurred, was laboring
No new facts were alleged, save in describing the notes and saying that payment had been refused. The transaction relied on was that specified in count 4; and the only material change wrought by adding count 5 was in demanding judgment on the notes, instead of for the proceeds of the certificates of deposit, said to have been collected. How, then was the defendant prejudiced? He lost no opportunity to defend; nor is it pretended that evidence existed which might have been adduced, had opportunity been afforded. There was no error in overruling the motion to strike. Jarozewski v. Allen, 117 Iowa, 632; Taylor v. Star Coal Co., 110 Iowa, 40; Taylor v. Taylor, 110 Iowa, 207; Bruner v. Brotherhood of American Yeomen, 136 Iowa, 612. The facts suggested readily distinguish the ease from Boardman v. Construction Co., 123 Iowa, 603; Building & Loan Ass’n v. Burgess, 129 Iowa, 422, and others cited by appellant.
Section 225 of the Code declares that "the district court shall have original and exclusive jurisdiction to probate the wills, of and to grant administration upon the estate of,, all persons who, at the time of their death, were residents of the county, and of nonresidents of the state who die leaving property within the county subject to administration, or whose property is afterwards brought into the county.” Its jurisdiction in the settlement of the estate is co-extensive with the state (section 3265, Code); and, even though decedent’s place of residence be a jurisdictional fact, it is one of those jurisdictional facts, as apparent from the language of the above statute, which must be determined by the court from the
The order admitting a will to probate is effective throughout the state, and may not be collaterally attacked. Townsend v. Townsend, 4 Cold. (Tenn.) 70 (94 Am. Dec. 185); Tanner v. Allison, 3 Dana (Ky.) 423; Halbert v. De. Bode (Tex. Civ. App.) 28 S. W. 58.
As the probate of the will might not be assailed collaterally, and nothing in the amendment filed indicated that the plaintiff had been appointed otherwise than in pursuance of statutory direction, there was no error in sustaining the motion to strike such, amendment. See, generally, as to appointment of administrators being subject to collateral attack. Murphy v. Creighton, 45 Iowa, 179; McFarland v. Stewart, 109 Iowa, 561; Nash v. Sawyer, 114 Iowa, 742; Seery v. Murray, 107 Iowa, 384; Lees v. Whetmore, 58 Iowa, 171. These eases are distinguishable from In re Estate of King, 105 Iowa, 320, where the petition for appointment of the administrator disclosed .on its face that the court to which addressed was without jurisdiction.
The circumstance that some of the witnesses were incompetent to testify to personal transactions or communications with decedent furnished no ground for excluding their opinion, as nonexperts, as to his mental condition. In re estate of Goldthorp, 94 Iowa, 336.
Nothing need be added to what has been said in these decisions. Of course, a nonexpert may not be permitted to express an opinion on the ultimate fact to be found by the
"VII. The fourth instruction reads: “If you find, from the weight or preponderance of the evidence introduced upon the trial that any or all of the property mentioned in plaintiff’s petition, as set out in paragraph 1 hereof, came into defendant’s possession, and that defendant retained and still retains same as his own, then plaintiff is entitled to recover the amount so retained by defendant, together with interest thereon, unless you find, from the weight or preponderance
The criticism of this instruction is that it authorized a recovery by plaintiff on all six of the certificates of deposit óf $500 each, alleged in the fourth count to have been cashed by him, notwithstanding the fact that three of these had not been shown ever to have been in the name of the decedent. If this be conceded, however, a sufficient response is that the answers to the interrogatories affirmatively disclose that nothing was allowed by the jury on the fourth count of the petition. This is made apparent in what follows.
The court after inspecting the verdict, said:
Gentlemen: You have made a mistake in answering these interrogatories. I will read to you the instruction, or a portion of the fourteenth instruction, applying to this. [Done.] You seem to have answered the interrogatories correctly as to the first, second, and third counts, and I will read the instructions in reference to the fourth and fifth. [Done.] You have not followed these instructions, gentlemen, and you can retire to your jury room and straighten them out as between the fourth and fifth counts.
The jury retired, and, after remaining out twenty-five minutes, returned, when the court inquired.
Do you want to ash me some question? Foreman: We can’t understand that count 4 and 5. By the Court: Well,*221 count 4, as I say to you in the instructions, is based upon a claim in reference to certificates of deposit. Now, in that instruction I say to you that you can only allow on count 4 the $1,575, with interest; and, if you find for plaintiff on count 4, that is the greatest amount that you can allow. If you find for plaintiff upon count 5, as I say to you in the instructions here, that is based upon two alleged promissory notes. Now, under count 5, if you find for plaintiff, you can allow the amount of the notes, with interest. In the event that you allow plaintiff anything on count 5, you must not allow anything on count 4. Do I make it plain? Juror Rhodes: As I understand it, your honor, we have not allowed anything on count 4. By the Court: I think, Mr. Rhodes, you have allowed on count 4, as you will find by reading the interrogatory. That is the one you have allowed on, instead of count 5. By reading the interrogatory itself, you will see that you have allowed on count 4, and not on count 5. If your intention was to allow on count 5 and not on count 4, you may retire and attend to it.
The defendant duly excepted, and the jury in a short time returned with the same verdict, but with the answer to interrogatory 5 erased, and it inserted as the answer to interrogatory 4. The defendant excepted to all that occurred, and now insists that what the court said amounted to an oral instruction, and was in violation of section 3705 of the Code, exacting that the charge of the court be in writing, and section 3720, requiring that when the jury are returned into court and additional instruction as to any point of law arising in the ease given these “shall be in writing” and subject to same exceptions as those previously given. "Were what was said by the court to be regarded as an instruction in the sense contemplated by statute, the exceptions of defendant must have been sustained. Head v. Langworthy, 15 Iowa, 235; State v. Harding, 81 Iowa, 599; State v. Mullen, 151 Iowa, 392.
But the language cannot be so construed. Therein no principle of law was explained or applied, nor any phase of law or fact arising in the case discussed. All that was
In reference to the claim made by plaintiff in the fifth count of his petition, as set out in paragraph 1 hereof; if you find from the weight or preponderance of the evidence introduced upon the trial that on March 2, 1908, defendant borrowed of said Peter Fillenwarth $3,150, and that he executed his notes therefor substantially as alleged in said count, then you should allow plaintiff such amount, together with interest thereon at the rate of 5 per cent, per annum from March 2, 1908, to the date of the maturity of said notes and 6 per cent, thereafter. If you find for plaintiff upon count 5 of his petition, you should not allow plaintiff any sum upon the fourth count of his petition, as set' out in paragraph 1 hereof, as the matter of the certificates mentioned in said count 4 is, according to plaintiff’s theory, included in the notes mentioned in said count 5. If you fail to find for plaintiff upon said count 5, you may consider said count 4. In reference to the six $500 certificates of deposit therein referred to, there is no evidence which in any way connects the decedent, Peter Fillenwarth, with three of said certificates, it appearing conclusively that said three certificates stood in the name of defendant’s wife, and in no event should you allow plaintiff anything because thereof.. As to the other three certificates, the evidence shows that they were turned over to and cashed by the defendant. If you fail to find that two of said certificates were given to defendant, substantially as claimed by him, then you should not allow plaintiff anything because thereof. If you find that the proceeds of the other $500 certificate and the interest upon the three certificates were paid to said Peter Fillenwarth by defendant, substantially as claimed by defendant, then you should not allow plaintiff anything because thereof. In no event should you allow plaintiff on count 4 any sum in excess of $1,575, together with 6 per cent, interest thereon from March 2, 1908.
Appellant urges that the evidence was insufficient to carry the issue as to decedent’s mental unsoundness to the jury, and insists that the verdict is not sustained by the evidence. A careful reading of the record has convinced us otherwise, and that the judgment should be Affirmed.