188 Iowa 70 | Iowa | 1920
But one witness testified in this case. The other evidence consisted of records, and other documentary evidence. The application in this case, which is denominated petition and motion to set aside, etc., was filed October 25, 1916, and was to set aside the order made August 18, 1916. August 16, 1916, two days before the order denying the admission of the other will to probate, there was filed in the clerk’s office an instrument purporting to be the last will of Josiah Kempthome, deceased, dated November 2, 1907. By this instrument, deceased de vised" certain real estate to his four daughters, with directions that such property be sold, and the proceeds divided between them. The residue was given absolutely to his wife, Rebecca Kempthorne, who was appointed executrix. The will which was denied probate, and the one now in question, is dated May 12, 1916, and was filed May 22, 1916. Testator died May 13, 1916. In brief, the terms of the last-mentioned paper, after' providing for payment of debts, funeral expenses, monument, and the like, make specific legacies to the Organization for the Support of Worn-out
“All the rest and residue of my estate shall be divided into ten equal parts remaining at the death of my wife, and not herein specifically devised and shall be distributed as hereinafter stated, viz.: I give and devise the life use of three of said parts for the sole use and personal benefit of my daughter Rebecca K. Lambert which shall be held in trust by the persons who shall administer my estate and be by them paid to her in person or for her use and benefit solely and for her children but no part thereof shall be for the maintenance of her divorced husband, F. E. Lambert, and at her death said trust fund shall be and become the property of her three children or of such of them as shall be living at her death. To my daughter Mrs. Nettie Hudson I give three of said parts to have and to hold to her in her own right absolutely. To my daughter Mrs. Emma J. Haeseler, and to my daughter Mrs. Pearl Tone McQueen, I give and bequeath to each two of said shares or tenth parts. I have made this division on the basis of the children bom to my daughters including to each and to the mother individually a share apiece except in the case of Mrs. Lambert to whom I have previously made advancements.”
His wife is appointed principal executrix, and two of her daughters associate executrices. The subscribing witnesses to this were Calvin Yoran and Alton F. Dunham. The value of the estate is $100,000 or more, the larger part being realty.
“This case was one where the parties had been friends and acquaintances of mine for years, and their desire was
Mr. Miller also prepared the other orders, and applications for appointments of attorneys, etc. The depositions of the two subscribing witnesses were read. That of Mr. Dunham is'brief, and recites the signing of the instrument by deceased and by the two witnesses; that he was not there when the will was being written, having been just called as a witness. The other subscribing witness, Mr. Yoran, an attorney of many years’ practice, and the one who drew the will, testifies that he only knew deceased as he met him, when called to draw the will; that the son-in-law of deceased, Rev. Hudson, came to the witness to have him draw the will; that he went to the home of Mr. Hudson, where deceased was. He testifies as to the formal signing of the paper; that deceased was in some critical distress, but acted rational, and apparently comprehended all that was said to him; that he judged him mentally sound, and capable of connected thought; that Mrs. Kemp-thorne explained to witness the main provisions which deceased desired incorporated in his will; that deceased could talk but very little; that the wife explained to witness different provisions, and deceased gave his assent. In regard to the trust provision in the will, witness testifies:
“Owing to the condition in which Mr. Kempthorne was, after arriving at the house, Mrs. Kempthorne, his wife, had an interview with me, at some length, and during our conversation, she alluded in a vague way to family troubles; and I did not feel at liberty to interrogate her closely, as I had reqeived the impression that time was essential, and assumed that she was advising me of all the
The testimony of the other witnesses whose testimony was taken, was presented and read to the court on the hearing of the probate of the will, -but was not before the trial court on the hearing of this proceeding for a new trial, and is not before us.
On August 18, 1916, the hearing was had before Judge McHenry, and the order recites, among other things, that it was a regular day of the May, 1916, term of the court; that the matter came on for hearing on the petition of Rebecca Kempthorne, widow, for probate oi: the will; that Miller & Wallingford appeared as attorneys for proponent, and Thomas J. Guthrie and E. S. Warren appeared for the three minors. It finds that due and legal notice has been given, as provided by law, and the court thereupon pro
“Jesse A. Miller MILLER & WALLING-FORD
J. D. Wallingford Attorneys at .Law
- Des Moines
Thos. J. Guthrie -■—
Oliver H. Miller
E. S. Warren Suite 302 Youngerman Block
Roy E. Curray Telephones: Walnut 392”
The evidence shows that Mr. Warren occupied a room in the suite of rooms occupied by the firm of Miller & Walling-ford, and rented the room, and paid rent for it to them. Mr. Guthrie was then a member of the bar, and later a judge of the district court; he occupied a room adjoining the firm of Miller &■ Wallingford, but he rented it from the Youngerman estate. The arrangement of the rooms and the hall and the third floor of the building is described, and that all the people who occupy rooms in the south end of the Youngerman Block, going through the main entrance to the rooms of Miller & Wallingford, enter their reception room, and from there to their several rooms. The undisputed evidence is that Warren and Guthrie had no connec
Defendants offered in evidence the records showing the filing, on September 13, 1916, of the petition for letters of guardianship, order appointing guardian, guardian’s bond, and letters issued; also the withdrawal, on October 9, 1916. of Reed & Reed, attorneys for Lambert; report and resignation of C. M. Young, guardian, and order for hearing of report; petition, October 17th, for appointment of a new guardian; October 21st, order accepting resignation, and
This is the substance of the record in the case, and the matters recited are all covered by the motion to set aside, and grant a new trial, and the answer thereto. There are 43 different grounds set up in the application. We shall not set them out in detail, but will consider the different points raised.
On May 9, 1918, the trial court in this case sustained plaintiffs’ application to set aside the order denying pro
“That the order made by this court on the 18th day of August, 191G, denying the last will and testament of Josiah Ivempthorne, deceased, probation, which will was filed in the office of the clerk of this court on the 22d day of May, A. D., 1916, was erroneous, and should be set aside, and that said last will and testament should be restored to the probate docket of this court for hearing and determination, the same as if said order of this court, made on the 18th day of August, 1916, had not been entered.”
The application for new trial alleged, among other things, that there was collusion between the defendants, and that they conspired together to procure the order refusing to admit the will to' probate, and that the order was obtained by the fraud of defendants and their attorney, and that the defense, by the attorneys appointed to act for the minors, acted in a perfunctory manner; that the purpose was to defraud the minors out of the property given to them by the will. The trial court did not find that there was any fraud, but simply held that the prior action of the court was erroneous. It seems to us that the only ground upon which the prior order could be set aside would be for fraud, and that is the ground relied upon by appellees; and we think no fraud has been shown, unless it be assumed that acts of appellants and the attorneys which are, or may be, consistent with honesty and rectitude of purpose, are construed to be fraudulent. The presumption is in favor of honesty, and fraud must be proved. There is no dispute in the evidence.
1. We have doubts whether Lambert, as the alleged natural guardian of his children, has any standing in the
8. We shall now take up- the circumstances, or the more important ones, relied upon by plaintiffs, to show fraud, collusion, and conspiracy. It is plaintiffs’ claim that the two attorneys appointed to represent the minors were closely identified with the proponents’ attorneys, and that the perfunctory manner in which they performed their duties shows that the minors were not represented and their rights preserved. In the first place, the evidence does not show that the attorneys acted in a perfunctory manner. They, or one of them, went to Manchester, at the taking of the testimony; they were present at the hearing, and appear to have performed their duty. It might be perfectly legitimate that they should have their names printed on the letter heads of other attorneys, and occupy offices on the same floor, or in the same suite. We are asked to assume that, because they had their names printed on the letter heads of proponents’ attorneys, and had offices on the same floor, or as a part of the same suite, there was impropriety in their being appointed to represent the minors, and that this shows collusion. We are asked to so hold, in the absence of evidence to show any improper'interest in this matter, or collusion, and contrary to the evidence that there was none. These men are shown to be men of standing. We are not prepared under these circumstances, to construe these relations to be fraudulent, when they may properly be construed to be upright; nor does it necessarily follow that they did not perform their duty because they did not demand a jury, and engage in a bitter and expensive will contest. Had they done so, without reasonable grounds, they might have been subject to criticism. Juries are often waived. If the case was fairly presented to the court, no claim of fraud can properly be predicated upon the fact that the case was submitted to the court, as all parties were willing to do. It was, of course, their duty to raise and present
It is claimed further by plaintiffs that the attorneys for the minors did not perform their duty, in that they did not object to the alleged incompetent evidence of Rebecca Kempthorne and C. K. Hudson, and did not object to tlie orders to take the evidence of such incompetent witnesses. It may be conceded that these witnesses were incompetent, under Code Section 4604, to testify as to any personal transactions or communications with the deceased; but they were competent to testify in regard to other matters. The trouble with plaintiffs’ contention as to this is that the testimony of such witnesses was not before the trial court in this case, nor is it before us. There is no showing that any question was asked either of these witnesses that was objectionable. We are again asked to assume, in the absence of evidence, that improper evidence was given, and without objection. There was no occasion for objecting to the orders to take testimony of such witnesses, unless it should have been' assumed in advance that the witnesses would be asked to give incompetent testimony. The proper time to make the objection to the witness, under Section 4604, is when the witness is sworn. Plaintiffs also complain that the attorneys for the minors filed no answer to the objections filed by the four daughters. We held, in the case of In re Jones’ Estate, 130 Iowa 177, 186, that no answer or reply to the objections is required.
These are the more important circumstances relied upon by plaintiffs to show' fraud on the part of the attorneys appointed to represent the minors, or that they did not perform their duty. There may be some others; but, under the entire record, we think the plaintiffs’ claim as to them cannot be sustained.
4. It is claimed by plaintiffs that the making of the
5. It is complained by appellees that the application of Rebecca Kempthorne, by Mr. Miller, for the appointment of an attorney to represent the minors, and for the appointment of a guardian ad litem, and that he prepared the formal orders, are circumstances tending to show fraud and collusion. We fail to see any impropriety in this. Mr. Miller was the attorney for Mrs. Kempthorne, the proponent of the will. If it was necessary and proper that a guardian ad litem, or attorneys, should be appointed for minors, we see no reason why the court’s attention should not have been called to the fact 'that there were minors, and that someone should be appointed to represent them. Had counsel for plaintiff or proponent failed to call the court’s attention to the matter, it seems to us he would have been remiss in his duty. We suppose it is done even-day, where a plaintiff brings an action against different parties, some of whom are minors, and has a guardian ad litem appointed for the minor defendants. A failure to
6. Another circumstance relied upon by plaintiffs is that the objections to the probate of the will by the four daughters were not filed until the day of the hearing. They were filed before the hearing, and that is sufficient. They had a right to file them at any time before. Ordinarily, it would doubtless have been proper for the guardian ad litem, or attorney for the minors, to ask time to investigate and prepare for trial, if necessary. But the case is somewhat out of the ordinary, in this: that ihe testimony had already been taken, and the attorney for the minors was present, and knew the tendency of the evidence. The proponent and the objectors are shown to have been willing to present the matter to the court, and abide by its decision, whether the will was probated or denied probate.
7. It is thought by appellees that the testimony given by Mr. Yoran, one of the subscribing witnesses, sustains the validity of the will. This evidence has been before set out. This may be so, as to the mental condition of deceased, if this evidence stood alone. What other evidence was introduced, was not before the trial court, nor is it here. It is quite clear, however, even from Mr. Yoran’s testimony, that the trust provision in the will was not as the
9. Appellees seem to rely on In re Estate of Zachary, 165 Iowa 309; but we think that case is readily distinguished from the instant case. There, fraud was alleged and proven. Here, fraud was alleged, but we think it was
We have discussed the principal grounds relied upon by appellees to show fraud’. There may be some others; but the opinion is already too long-, and we shall 'not go into further detail. We have examined the entire record with great care, and reach the conclusion that plaintiffs’ contention that Mr. Miller, as attorney for proponent, and his client were acting together, to prevent the probate of the will, and to.defraud the minors, or that there was collusion between them and the other parties for that purpose, is not sustained by the record. The fraud is not established.
11. Appellant contends that, since the term had expired, so that a motion to set aside the judgment could not properly be entertained, this proceeding must be under Section 4091 of the Code. We think it is unnecessary to discuss this subject further, and only cite additional cases referred to by appellants on the question of the alleged fraud, and to the proposition that, under that section, no showing was made which justified the court in setting aside the judgment. Such additional cases are Hedrick v. Smith & Reed, 137 Iowa 625; Kelly v. Cummens, 143 Iowa 148; Harris v. Bigley, supra.
12. Appellants further contend that plaintiffs did not show, on the trial in the district court, that a new trial would result in a different judgment from the one rendered when the will was denied probate, and that, therefore, the trial court erred in vacating the judgment. They claim it is necessary to so show, and cite Code Sections 4094 and
There may be force in this contention,- but since we have held that fraud, and other matters relied upon by plaintiffs, have not been shown, it is unnecessary to discuss this feature.
13. It is claimed by plaintiffs that an injustice was done the minors in setting aside the will; but no more injustice was done them than was done the four daughters of deceased, who filed objections, and are not complaining. If the first will is not probated, the mother of the minors will inherit a sum substantially equal to the property given to them under the trust provision of the last will. If the first will is probated, the estate will go to the grandmother of the minors, and from her, doubtless, to the four daughters, including the mother of these minors. We are impressed with the thought that ultimately these minors will fare as well, and perhaps better, than under the will in question. Of course, this is not the question upon which the case must be and is decided, but the thought is suggested li.v appellees’ argument.
We reach the conclusion that the trial court erred in setting aside the judgment and order which denied the probate of the will. — Reversed and remwnded.