Nixon v. Snellbaker

Sherwin, J. There was offered for probate an instrument in writing purporting to be the last will and testament of Mahaly Snellbaker, executed June 4, 1890. The instrument was signed by said Mahaly Snellbaker and witnessed by W. A. McHenry and Mary S. McHenry, but without attestation clause. The probate of the instrument was contested on the ground that it was not legally executed. There was a trial to the court without a jury, and a judgment admitting the will to probate. The contestant appeals. At the time of the execution of the will, the testator was a resident of Denison, Iowa, as were also the witnesses; W. A. McHenry being at that time in the banking business in Denison, and Mary S. McHenry being his wife and living with him there. It was proven that the body of the will was in the handwriting of Mahaly Snellbaker, and that it bore her signature. It was also proven that McHenry and his wife signed the will as witnesses. At the time of the trial, both of these witnesses were alive, but cut of the state, and their depositions were used. They both testified that they signed the instrument, that they were acquainted with Mahaly Snellbaker during her lifetime and with her signature, and that her signature to the will was genuine. But beyond this neither witness had any recollection. They did not recollect signing the will themselves, nor did they recollect of testator’s signing it. execution: subsequent declarations of testator, The appellant’s most serious complaint relates to the admission of declarations alleged to have been made by the testator several years after, the execution of the will. These declarations were, in effect, that she had herself written the will and signed it, ■ and had then taken it .to the home of W„ A. McHenry, one of the witnesses thereto, and had him and his wife, Mary S. McHenry, sign it as witnesses. The decisions of the several courts are not in accord on the question of the admissibility of the declarations of the testator, whether made before or after the [392] execution of the will. It is a pretty general rule, however, that declarations which tend to vary or contradict the terms of a will are not competent because of the rule excluding’ parol evidence tending to contradict a writing, and for other reasons which we need not more specifically refer to. Declarations tending to show the state of the testator’s mind, where such issue is involved, are quite generally held admissible. But no question is here involved except the one whether, under the circumstances •shown, the declarations of the testator made long after the execution of the will are competent for the single purpose of showing that she signed the will, and that her signature thereto was afterwards witnessed by McHenry and his wife. This question was settled adversely to appellant’s contention, but without discussion, in Scott v. Hawk, 105 Iowa, 467. In that case the subscribing witnesses were dead, and the declaration of the testator, made years after the execution of the will that it was his will, was held competent. That case and this one can not be distinguished on the ground that there the testator examined the instrument at the time he made the declaration. Here the will was written by the testator herself, and her signature thereto, is undisputed, which makes at least as’ strong a case for the admission of the declarations. The rule thus announced is supported by the following authorities: 3 Wigmore on Evidence, section 1736, and cases there cited; In re Kennedy's Will, 167 N. Y. 163 (60 N. E. 442). See, also, on subject generally, note in 50 Am. St. Hep. 279. Where there is a presumption that a will was duly executed, evidence of testator’s declarations is competent in aid of such presumption. Abbott’s Trial Evidence, 124 While we are of the opinion that these declarations were admissible, we are also convinced- that they were not necessary to prove the due' execution of the will. [393] execution: presumption. [392] It being undisputed that the will was written and signed by the testator, and that it was' signed as witnesses [393] by W. A. and Mary S. McHenry, the presumption is conclusive that the will was signed by the testator before it was witnessed, and, such t being the fact, it was executed with all the formality required by the statute. There need be no attestation clause. In re Hull’s Will, 117 Iowa, 738. It is not necessary that witnesses should see the testator subscribe the will. In re Will of Convey, 52 Iowa, 197. Nor is it necessary that testator should state to the witnesses the character and purpose of the instrument which he causes them to witness. In re Will of Hulse, 52 Iowa, 662. And “where the witnesses are all dead, or can not be had because beyond the jurisdiction . of the court, or being present deny' their signature, or do not remember, proof of the handwriting of the witnesses and of the attestation may be given.” In re Estate of Allison, 104 Iowa, 130. And such proof is competent,' although the depositions of the witnesses are in court. In re Estate of Allison, supra. "Where the will appears regular, the presumption arises that it was duly attested, and that the testator signed the instrument before either of the witnesses subscribed. Schouler on Wills, sections 321, 322; Lawson on Presumptive Evidence, 82, and illustrations; Eliot v. Eliot, 10 Allen (Mass.) 359; Ela v. Edwards, 16 Gray (Mass) 96; Carpenter v. Denoon, 29 Ohio St. 391; In re Fry’s Will, 2 R. I. 88; 30 Am. & Eng. Enc. Law, 597; Allen v. Griffin, 69 Wis. 529 (35 N. W. 21). The facts in this case were determined by the court in a law action, and the finding has the force of a verdict. We think there was no error in admitting evidence, and that the court was justified in finding that this will was properly executed. The judgment is therefore affirmed.