179 Iowa 183 | Iowa | 1915
Archibald Livingston never married, and left lateral heirs only. He ivas 83 or 84 years old at the
“1. Said trustees shall invest such money and property in good real estate mortgages or bonds, or other securities of unquestionable value, and when the principal and interest of my bequest, together with any sums that may be donated by outside parties, shall'reach the amount of at least $25,000, they shall purchase or secure by donation suitable grounds and erect thereon a sanitarium to be called the Archibald Livingston Sanitarium, the same to
And then he directed that said trustees yearly publish, in some paper at Monticello, a complete statement of the condition of the funds, and report at least every two years the details as to the management of said fund and sanitarium, provided for the appointment of the trustees in (lie event of a vacancy, and directed that trustees be. empowered to make, all needful rules and regulations for the, government of the sanitarium, and be given full authority to carry out the purposes of the bequest. H. M. Carpenter was named as executor. On the 26th day of October following, he executed a codicil withdrawing the legacy to James Livingston, inasmuch as he had paid him $500 in cash, which he said James preferred to the legacy. A few months before his death, January 29, 1909, the deceased signed a codicil, which was duly witnessed, in words following:
“I, Archibald Livingston, of South Fork Township, Delaware County, Iowa, being of sound mind and memory but aware of the uncertainty of life, do make this change and additions to my will heretofore made.
“First. The trustees under my will shall be H. M.
Nineteen lateral heirs filed objections in two divisions. In the first division, alleged reasons are given why Lenox
“Any person having the custody of a will, shall, as soon as he is informed of the death of the. testator, file the same with the clerk. Any person who fails to produce the same after receiving reasonable notice so to do may be committed to jail until he does, and shall be liable for all damages occasioned by his failure.”
It is not material who may have presented this will and codicils to the clerk; it is enough that they were presented by someone (i. e., Hugh Livingston) ; and, having been so. turned over, the clerk of the district court had no option save to comply with Section 3283 of the Code, which provides that:
“After the will is produced, the clerk shall open and read the same, and a day shall be fixed by the court or clerk for proving it, which shall be during a term of court, and may be postponed from time to time in the discretion of the court. When the probate of a will is contested, either party to the contest shall be entitled to a jury trial thereon.”
should be so admitted. The contestants wa-Ned all formal proof in support of the instruments, and it is to be presumed in favor of the order of the court
admitting the will and the two codicils tó probate that, as to any other interested party, the proof exacted by the law was made. If not, it was of no concern to appellants.
It was held in In re Probate of Will of Fallon, 107 Iowa 120, that, in order to have any standing to contest the execution of a will, one must have some interest in the estate of the deceased. See, also, In re Estate of Smith, 165 Iowa 614; Wilcoxon v. Wilcoxon, (Ill.) 46 N. E. 369. In the latter case, after considering other grounds, the court said:
“Independent of what we have said, we are unable to see upon what theory it can be held that the complainant ‘in this bill has any standing whatever in a court of equity. His bill recognizes the validity of the will of 1852. That will, as we have already said, in the most comprehensive and unequivocal terms, gives to Cyende Wilcoxon, absolutely and unconditionally, all the property of every description of which the testator should die seised. The codicil only purports to express a further desire in the disposition of his estate if his wife Cyende should die before he did, and expressly reaffirms the bequest made in the original will. In other words, the force and effect of the codicil depended wholly upon the fact as to whether or not the wife should survive him. The bill itself alleges that she did survive him, and she is made a party thereto. How, then, can it be’ said that the execution of this codicil in any way affected the rights or interests of Thomas D. Wilcoxon, the complainant below? Certainly it interferes in no way with any devise or legacy which he may receive from Abigail M. Wilcoxon, because, if he receive any such devise or legacy, he does so through her will, and independent of any act of his father. If it be said that the codicil obstructs his right to receive an interest in his father’s estate, the answer is that that estate is wholly disposed of by the original will, vesting it in the widow, Cyende Wilcoxon. So as to the deed. When Thompson Wilcoxon died, that moment, under
The only difference between that case and this is that there the will had been admitted to probate before, while here this was done at the time of, trial. There is no difference in principle between the cases. Appellants rely somewhat on Murphy’s Exr. v. Murphy, (Ky.) 65 S. W. 165, where it was held that:
“An heir was entitled to contest testator’s will which was probated, though he was also executor by a previous will which had not been probated, as the previous will might never be offered for probate, and if so might also be the subject of contest.”
The case is not in point, for here the will was submitted for probate at the time of the contest, and in the judgment complained of, actually admitted. As it was demonstrated in the course of the trial that plaintiffs were without interest, the court very properly struck from the files the objections to the execution of the second codicil, and