In Re Estate of Duffy , 228 Iowa 426 ( 1940 )

I find myself unable to agree and respectfully dissent.

The majority concede that an action to contest a will can only be brought by "one who would have a beneficial interest in the estate, if there was no such will." (See In re Estate of Stewart,107 Iowa 117, 77 N.W. 574.)

In the case at bar, if there was no last will and testament, the estate of the deceased would descend intestate. If the deceased died intestate the alleged lien of the appellant, which is purely a creature of the statute, (see Hunter v. Citizens Sav. and Trust Co., 157 Iowa 168, 138 N.W. 475, Ann. Cas. 1915C, 1019) would not attach to the land or create any property right in the appellant. It would simply attach to the debtor's interest in said land, subject to any infirmity or condition that may cause the interest of the heir to cease to exist, in which event the lien ceases with it.

It does not seem to me that the appellant has a real or beneficial interest in the estate of the deceased as provided by Code section 10967.

It is true that the courts of the country are not in agreement upon this question. But the rule referred to in the opinion as the minority rule (why the majority call it the minority rule I do not know, as I do not find it is so referred to in any of the cases) seems far more logical to me.

Why a judgment creditor should not be permitted to contest a will, can be no better stated than in the following quotations.

In Shepard's Estate, 170 Pa. 323, 328, 32 A. 1040, 1041, cited in 46 A.L.R. 1491:

"* * * we are of opinion that a creditor of an heir is not a party interested, as designated by the statute. We will not undertake, in the absence of express legislation, to give such scope to this language as is claimed by appellee for it; will not invite every disappointed creditor of every heir and legatee to contest the will of a parent who has attempted to provide for those dependent for subsistence on a thriftless son. For no line can be drawn which will limit the grounds of contest, if a creditor of an heir be a party interested; incapacity, undue influence, as well as fraud, may be alleged by any one of hundreds of creditors; such an interpretation would increase indefinitely the number of litigants; it would be in the power of anyone to tie up large estates, although the interest of the debtor heir might be comparatively small."

And in the case of Bank of Tennessee v. Nelson, 3 Head's Reports (40 Tenn.) 634, at page 637, we find:

"No one, without an interest in the estate can contest a will or call for a re-probate. The complainant is only a creditor of one of the devisees, and can only act upon his rights. The debtor is content with the will, chooses to avail himself of no objection to it that may exist, although it reduces a fee in the land to which he would be entitled by law, to a remainder interest. If he acquiesces in its validity by waiving his right to object and contest it, for the incompetency of attesting witnesses, or on any other ground, how can his creditor, who has to pass through him, to reach the property, make the objection for him?"

The statutes under consideration in the cases quoted from, were similar and required the same construction as Iowa Code section 10967.

While apparently the question which confronts us in this case has not been definitely ruled upon before by this court, the court has pointed the way. In the case of Collins v. Ahrens,189 Iowa 178, 180, 176 N.W. 953, 954, this court said:

"An heir might, by successfully contesting a will, obtain means out of which payment of his debts could be made. The same result might follow from his succeeding in having the testament given a certain construction. But no one will claim that his creditor can contest the will and thus ultimately obtain satisfaction of his debt. We can see no reason why one who would have no standing to contest a will has standing to have it construed."

This court again in the recent case of Burk v. Morain, 223 Iowa 399, 272 N.W. 441, 112 A.L.R. 79, made similar statements.

True in both of these cases, it was mere dictum, but it does show that at that time as the court was then composed, had the question been presented it would have held contrary to the rule announced by the majority.

Under the rule announced, any judgment creditor of any heir, regardless of the amount of his judgment, can force upon an estate the defense of a will contest, which will not only cost the contestant money, but the estate itself.

I would affirm the lower court.