61 Iowa 23 | Iowa | 1883
— J". R. Doty died in September, 1877, .in Memphis, Tenn. The day before he died lie made the will in question, whereby he bequeathed and devised all his property to the plaintiff, Mrs. Josephine Otto,, then residing in Lousiana, but now in Wisconsin. He left no wife nor children. He had formed, as the evidence shows, a very strong attachment to Mrs. Otto, a widow, .and had made to her a proposal of marriage. The defendants aver that the testator was a monomaniac on the subject of religion, and also that the execution of the will was obtained by undue influence.
The allegation of undue influence is equally unsupported. The plaintiff was not with the testator at the time he died, nor at any time during his last sickness. Nor does it appear that any communication took place between them in regard to his property, nor that she ever encouraged any affection on his part which he might not lawfully cherish.
An objection is made, however, by the defendants that the will was never duly probated.
As to the'alleged want of notice,' we have to say that it is not shown affirmatively, either that there was a want of notice, or that notice was necessary. The authenticated copy of the record introduced shows the will, and the action of the court in probating the same. Possibly, the evidence is not conclusive. Put it is the evidence, we think, contemplated by the statute, Code, section 2351, and if so, it is sufficient, in the absence of any evidence to the contrary.
The fact that the will was proved by only one of the sub
Possibly the plaintiff, in setting out an abstract of her title, should have shown therein that the will had been probated in the circuit court of Story county. Whether she did so show does not appear, nor is it material. It is sufficient to say that no objection was raised for want of proper abstract of tide, and if there was such want, it could not affect the decree.
' Richard testified that J. R. Doty “told him that he let his father have the land for some money he had -borrowed of him.” We think, then, that, if the deed was not forged, it was executed with the design of delivering it as a mortgage, to secure one or more loans already made, and one yet to be made, but that the transaction was never completed. Several circumstances tend to support this view. The deed was not recorded until April, 1878, and did not come into the grantee’s hands until February of that year. J. R. Doty
If it were shown that J. W. Doty advanced money upon tlie strength of an agreement on the part of J. R. Doty to make a mortgage, possibly J. W. Doty might be held to have an equitable lien; but we think that tlie evidence does not show such advancement. There is certainly no evidence that tbe money previously advanced was advanced upon the strength of sucb an agreement, and, if there is any evidence that money was advanced at the time of the execution of the deed, it is very slight, and overcome, we think, by the proven conduct of the parties. In our ojúnion, the decree of the district court must be
Affirmed.