In Re Will of McKinstry

Supreme Court of Iowa

In Re Will of McKinstry

215 N.W. 497, 204 Iowa 487

CourtSupreme Court of Iowa

DecidedOctober 18, 1927

StatusPublished

Cited by6 cases

This text of 215 N.W. 497 (In Re Will of McKinstry) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Will of McKinstry, 215 N.W. 497, 204 Iowa 487 (iowa 1927).

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Opinion

Morling, J.

The only question argued is whether, under Section 11865, Code of 1924, the clerk has authority to prescribe less than ten days’ notice of hearing of application for probate of will. The section reads as follows:

‘ ‘ The clerk shall give notice of the time fixed, by publishing a notice, signed by himself and addressed to all whom it may concern, in a daily or weekly newspaper printed in the *488 county where the will is filed, once each week, for three consecutive weeks, the last publication of which shall be at least ten days before the time fixed for such hearing. The court or the judge in vacation, or clerk, in his discretion, may prescribe a different notice.”

The clerk ordered notice of hearing by one publication in the newspaper named, at least five days before the date set. The notice was given, and order admitting the will to probate accordingly entered. It is not claimed that either the clerk, in making the order, or the court, in denying the motion to review, abused their discretion, if the statute authorized the clerk to prescribe less than the ten days' notice. It is not necessary to review the history of the statute in controversy. We are unable to see that it is at all ambiguous or uncertain, or that it requires interpretation. If no different notice is prescribed, the three publications, the last of whieh shall be ten days before the time fixed, must be given; but by the plain language of the statute as it now stands, “the court or the judge in vacation, or clerk, in his discretion, may prescribe a different notice.” Ample remedy for abuse of discretion is provided by motion for review. Sections 11834, 11835, Code of 1924. Besides, one desiring to contest the will has one year after notice, and two years, in the absence of notice of probate, in which to sue to set aside the will. Section 11007, Code of 1924. — Affirmed.

Evans, C. J., and Stevens, De Graff, and Albert, JJ., concur. Wagner, J., not participating.

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Morling, J.

The only question argued is whether, under Section 11865, Code of 1924, the clerk has authority to prescribe less than ten days’ notice of hearing of application for probate of will. The section reads as follows:

‘ ‘ The clerk shall give notice of the time fixed, by publishing a notice, signed by himself and addressed to all whom it may concern, in a daily or weekly newspaper printed in the *488 county where the will is filed, once each week, for three consecutive weeks, the last publication of which shall be at least ten days before the time fixed for such hearing. The court or the judge in vacation, or clerk, in his discretion, may prescribe a different notice.”

The clerk ordered notice of hearing by one publication in the newspaper named, at least five days before the date set. The notice was given, and order admitting the will to probate accordingly entered. It is not claimed that either the clerk, in making the order, or the court, in denying the motion to review, abused their discretion, if the statute authorized the clerk to prescribe less than the ten days' notice. It is not necessary to review the history of the statute in controversy. We are unable to see that it is at all ambiguous or uncertain, or that it requires interpretation. If no different notice is prescribed, the three publications, the last of whieh shall be ten days before the time fixed, must be given; but by the plain language of the statute as it now stands, “the court or the judge in vacation, or clerk, in his discretion, may prescribe a different notice.” Ample remedy for abuse of discretion is provided by motion for review. Sections 11834, 11835, Code of 1924. Besides, one desiring to contest the will has one year after notice, and two years, in the absence of notice of probate, in which to sue to set aside the will. Section 11007, Code of 1924. — Affirmed.

Evans, C. J., and Stevens, De Graff, and Albert, JJ., concur. Wagner, J., not participating.

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215 N.W. 497, 204 Iowa 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-will-of-mckinstry-iowa-1927.

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