135 Iowa 430 | Iowa | 1906
Lead Opinion
In Code, section 3301, it is provided that the administrator, except as otherwise required, before entering on the discharge of his duties must give a bond and subscribe an oath the same in substance as the condition of the bond prescribed in the section, which oath and bond must be filed with the clerk; but we do not regard the giving of the bond as a jurisdictional matter. The requirement as to a bond is no doubt mandatory, and the failure of the court to require bond to be given may constitute error which may be taken advantage of in the proceeding for the appointment; but we do not think that a failure, to require bond, or the postponement, as in the present case, of the fixing of the amount of the bond by the court, deprives the court of jurisdiction or subjects the order of appointment to collateral attack in a proceeding in which the administrator claims the right to act in pursuance of the appointment and letters issued to him. Beresford v. American Coal Co., 124 Iowa, 34; Seery v. Murray, 107 Iowa, 384; Bunce v. Bunce, 59 Iowa, 533. It seems to us that it would be wholly unreasonable to hold that after letters had been duly issued and the administrator had proceeded to act in the exercise of the authority which the letters issued in pursuance of a due appointment purported to convey, the court issuing the letters, when objection is made that no bond has been given, cannot cure any error which may have been committed in the proceeding by authorizing the giving of such bond and approving the bond so given. In the present case this was done before the court had proceeded further in the pending case
The contention of appellants is that this was not a retrial of the cause or proceeding in which the testimony was originally given, because this contest is by the widow of Eugene Wiltsey as his administratrix, while the former contest was by her and the children in their own" individual rights, and that therefore the evidence on the former trial was not taken in the cause or proceeding now pending; that is, that the present case or proceeding is not a retrial of the former contest, but is a new contest instituted by the administratrix.
But we think that this objection is not sound. The will was originally proposed for probate in 1900, and objection was made "to the probate thereof by Eugene Wiltsey. The court erroneously substituted the widow and heirs of Eugene Wiltsey in that proceeding after his death, and the testimoney taken was testimony in a proceeding in which there was an objection made by a competent party, but in which there had been an improper substitution of parties. After the reversal in this court the case went back for retrial of the same proceeding, in which there had been in the meantime a proper substitution of the administratrix of the original contestant. No new issues were raised, and the evidence taken on the former trial was as to the very matters determined on the subsequent trial. There was not a new proceeding to probate the will of Tolman Wiltsey, but there was simply such a substitution as to enable the court to properly proceed in that case. Now, it seems to us, that the proponents, who were the parties originally proposing the will
It is significant, however, that two relatives who are legatees to small amounts testify that on Thursday evening, after the second visit of the lawyer, testator declared to them that “ they are after me to make a will. I cannot make a will. I don’t know what to do with my property at all. I can’t do anything with it. I am too near dead. A dead man can’t make a will.’’ And their testimony as to the situation is somewhat corroborated by the circumstance that the relatives who received deeds to the real property seemed to think it safer to have conveyances made to them outright then to depend upon provisions in the will for their benefit. The testimony further tends to show that in the distribution of the real estate by these deeds, as well as in the designation of the legatees in the will, the testator was prompted from the beginning by inquiries, especially from a nephew and a niece who were most prominent in the proceedings, as to what the testator was to give to this one and to that one, and, so far as we can discover on a reading of the. record, he never at any time made any independent statement as to who was to be a recipient of his bounty. Suggestions being made to him, he would assent, modify, or negative, but he did not apparently proceed of his own volition to dictate the distribution of his property. Indeed, it appears that legacies to two of the legatees were added after the will was drawn, on the suggestions of the nephew present that testator ought to do something for them. The name of Eugene Wiltsey seems to have been suggested to the testator, with the question- whether he was his sworn soil, the implication evidently being that otherwise there' was no obligation to make provision for him, and no such provision was made.
With reference to testamentary capacity, the contention is not that testator was of unsound mind in the general acceptance of that term, but that by reason of his illness and his physical weakness he had not sufficient mental capacity at the time to make an intelligent disposition of his property, and we think there was sufficient evidence on this question to authorize the court to submit it to the determination of the jury. Manatt v. Scott, 106 Iowa, 203, 215; Meeker v. Meeker, 74 Iowa, 352; In re Betts’ Estate, 113 Iowa, 111; Phillips v. Phillips, 93 Iowa, 615. The jury, in answer to special interrogatories, found both undue influence and want of mental capacity. If we could reach the conclusion that want of mental capacity was not sufficiently made out, nevertheless the verdict must stand on the other finding, which is unquestionably supported by the evidence. In re Will of Selleck, 125 Iowa, 678.
Concurrence Opinion
(concurring).— I agree to the conclusion, but not to the construction placed upon section 245 a of the Code Supplement of 1902. I do not wish to announce the rule or be bound by an announcement that a special finding upon an issue for which there is no evidence whatever is cured by a finding upon another issue which there is evidence to sustain.