Perjue v. Perjue

4 Iowa 520

• Court: Supreme Court of Iowa
• Decided: July 1, 1857
• Status: Published

Opinion

Weight, C. J.

We do not understand it to be claimed, with any confidence, by appellants, that there was a revocation of the will by what was said and done by the testator, in August, 1855. And without now determining what, under our' law, would amount to a revocation, or of the methods in which this revocation may take place, it is sufficient to say, that the circumstances disclosed in this case, can in no way or manner affect the validity of this will. There was certainly no express revocation, nor is there any ground for claiming that it was impliedly revoked. 4 Kent, 521.; 1 Greenlf. Ev. § 273 ; Code, § 1288.

It is urged, however, that the District Court should have made an order adopting the will, and that it was error to remand the case for proof to the county court. Why the appellants should complain of this, we are at a loss to understand. Whatever error there was in this order, was to the prejudice of the appellees. As appears from the records of the county court, the said will was folly and sufficiently proved before the appeal to the District Court. It is manifest that no question was made in either court, as to the due and proper execution thereof, but that it was sought to be avoided, by proof of such subsequent acts as were claimed to amount, if not to a revocation, at least to a change of intention, which was so far executed or carried out,'as to render parts, if not all of said will, nugatory and void. There could be no prejudice, therefore, to appellants, in the order remanding the case to the county court, with instructions to admit the will to probate, upon proper and sufficient proof being made. The proof had already been made to the satisfaction of both courts, and it was entirely unnecessary to require the same to be again produced. The order should have been, that the county court admit the same to probate, and take further proceedings not inconsistent with the finding of the District Court.

Th'e objection that the District Court should have admitted the will to probate, and not have remanded the case to the county court for any purpose, is entirely untenable. The appellate court had nothing to do with the case, nor with the administration of the- estate, beyond hearing the appeal. When that was determined, there was no reason for retaining it in that court; nor any necessity for making the final order permitting it to be recorded. To ’have done so, would have involved the necessity of having it recorded in a book, unknown to the records of the* District Court, but which, under the law, is kept and provided by the county court alone. Code, § 1295.

Judgment affirmed.