74 Iowa 462 | Iowa | 1888
The proceedings set up in the answer were a contest of the will under section 2340 of the Code, which is as follows : “After the will is produced and read, a day shall be fixed by the court • or clerk for proving the same, which day shall be during a term of court, and may be postponed from' time to time, in the discretion of the court. 1Whenever the proving of a will is contested, either party shall be entitled to demand a jury, and to the verdict of the jury on the issues involved,.” That part of the section in italics was enacted as an amendment by chapter eleven of the Acts of the Sixteenth General Assembly. Before this amendment was made, the proceedings in relation to contesting wills were prescribed by the original section above quoted, and by section 2353, which provides that “wills admitted to probate, and proven as hereinbefore directed, shall be conclusive as to the due execution thereof until set aside by an original or appellate proceeding.” Before the amendment to section 2340, it was held that an original action could be maintained to set aside the probate of a will where no appearance had been entered or contest made. Leighton v. Orr, 44 Iowa, 680 ; Gilruth v. Gilruth, 40 Iowa, 348. In the last-named case, it was said that the original action contemplated by section 2353 is “for the purpose of giving contestants the right of trial by jury.” We think it is quite clear that, as the plaintiffs appeared when the will was offered for probate, and made their contest, and had a full trial, with the right to demand a jury, they cannot now institute an original proceeding or action at law, and again try the identical questions which have
We think that, in sustaining the demurrer to the answer, the court erred.
Reversed.
