
    In re Estate of Ann Bybee. Mary Ransom et al., Appellants, v. Mary Sigler et al., Appellees.
    WILLS: Probate — Refusal to Probate — Construction of Order. A 1 general order refusing probate of an instrument as a will, would imply that the court passed on all questions presented; but not so when the record shows that the refusal was based on a specified ground. Sec. 3283, Code, 1897.
    WILLS: Form and Contents — Will in Form of Deed. The form of 2 a will is immaterial, if it makes a post mortem disposition of property and is properly signed and witnessed. Held, an instrument, in form a warranty deed, may constitute a valid will. Sec. 3274, Code, 1897.
    WILLS: Execution — Attestation by Witnesses — Form, Manner and 3 Place of Signing. A subscribing witness need not affix his name to the will in any particular -form or manner or at any particular place on' the instrument. The essence of his signing is that he witnessed the execution of the instrument. Held, an instrument was sufficiently witnessed as a will when, following the signature of the testator, one witness signed his name under the caption, “Witness to signature,” and the other witness filled out on the same paper and signed a certificate which was, in form, an acknowledgment to an ordinary warranty deed.
    JUDGMENT: Res Adjudicata — Matter Actually Adjudicated — Ap4 peal. Principle recognized that a judgment or opinion of the Supreme Court may not have operation beyond the particular question litigated on appeal. Ransom v. Pottawattamie County, 168 Iowa 570, reviewed, and dicta therein indicated.
    
      Appeal from Pottawattamie District Court. — E. B. Wood-ruff, Judge.
    Monday, January 15, 1917.
    Rehearing Denied Saturday, May 12, 1917.
    Mary Ransom and Amasa Bybee applied for an order to probate an alleged will of Ann Bybce’s. The application was denied, and proponents appeal.
    
    Reversed.
    
      Killpach & Northrop and O. E. Swanson, County Attorney, for appellants.
    
      F. W. Miller, for appellees.
   Salinger, J.

I. The brief for appellee has 76 pages, and strongly and exhaustively presents many questions. We are of the opinion that, while these were all pertinent before the decision appealed from was made, but one — by possibility, two — -needs our consideration. No doubt many of the matters now argued would have been material if the court below had merely made an order declining probate; for such order would be presumed to pass upon every issue presented. But, of.course, when the record shows affirmatively that none but stated questions were decided, the aforesaid presumption has no room to operate. We cannot review what has never been decided. The trial court-ruled :

“Now, as to the question of adjudication and estoppel. I don’t think that it is necessary for this court to determine those questions, because the question that I have determined ends this case, as far as this court is concerned.”

In our view of the record, the only question that re mains for us to pass upon is whether the paper offered for probate does lack the required formalities of a will, and required attestations. The appellee contends for many things as being essential and necessary formalities of a last will and to the witnessing of the same. We think it will conduce to clarity if, instead of inquiring whether all that appellee demands is required, we proceed to state what formalities, attestations and witnessing are, in our opinion, necessary, and then to say whether any of these -are lacking here.

II. We glean from an examination of an abstract, additional abstract for appellee, an amended additional abstract for appellee, the said brief for the appellee, the original brief for appellant, and the one filed in reply, that the instrument proposed for probate and rejected had the caption, “Warranty Deed.” The body of it is in the ordinary form of warranty deeds, with claim of perfect title, authority to convey, freedom from liens and incumbrances, and a covenant to warrant and defend title. It purports to be made to the county of Pottawattamie, in consideration of $1 and certain other provisions named in the title. It contains this clause:

“This indenture to be effective after my death on the condition that Pottawattamie County, Iowa,.pay any debts that I may be owing at that date, and pay my funeral expenses, if any, and said land to be sold, and balance of said amount to be used for the benefit of the poor of said county.”

In connection with the signature of the grantor is, “Witness to signature, John A. Ransom.” It purports to have been signed on the 7th day of January, 1909.

In the appropriate place for acknowledgment of the paper is this:

“State of Iowa, Pottawattamie County, ss. On the 7th day of January, A. D. 1909, before me, a notary public within and for said county, personally came Ann Bybee (widow.),-personally known to me to be the identical person whose name is affixed to the above instrument, a legal grantor thereunder, and acknowledged the execution of the same to be her voluntary act and deed, for the purposes therein expressed. Witness my hand and notarial seal. N. Swanson, Notary Public.”

To this the notarial seal of Swanson was attached. We understand the trial court to hold that this instrument cannot be probated because it is not witnessed as wills are reL quired to be. “That it lacks the formalities necessary to make it a will.”

The only requirement the statute makes is found in Section 3274 of the Code, 1897, and is that the paper shall be signed by the testator “and witnessed by two competent persons.” We do not understand that the competency of these witnesses is challenged, if there be two “witnesses,” in contemplation of law.

The alleged testatrix signed a paper purporting to convey land, upon condition that the conveyance should not take effect until after her death. The law declares that this is not a conveyance, but a testamentary paper. It is of no consequence what she thought was the legal effect of it. The law settles its status and declares what it is. It need not be proved that the testator read over the will before signing, or was informed of its contents. Scott v. Hawk, 107 Iowa 723. It is only when the terms of the writing are not clear that collateral evidence may be received to ascer- . tain its intent. In re Estate of Longer, 108 Iowa 34, 37. Otherwise, the intent will be gathered from the instrument itself. Wilson v. Carter, 132 Iowa 442. In re Estate of Longer, 108 Iowa, 34, 37, cites from In re Lautenschlager’s Estate, (Mich.) 45 N. W. 147, that:

“An instrument in the form of a deed, but executed with the formalities of a will, and by its terms to take effect after death, has been held a will.”

And a paper stating, “I agree to will,” may be a will. In re Estate of Longer, 108 Iowa 34.

If what the testator does sign proves to be what the law declares is a testament, and witnesses duly attest it, they have attested a will, though neither the testator nor the witnesses knew that the law declared the writing to be a will. As bearing upon this thought, it has been held that, where the will is witnessed, there is a conclusive presumption that it was signed before it was witnessed; that, such being the fact, “it was executed with all the formality ^required by the statute;” that it is unnecessary that witnesses should see the testator subscribe the will, nor necessary that testator should state to the witnesses the character and purpose of the instrument which they witness. In re Will of Hulse, 52 Iowa 662; Nixon v. Snellbaker, 155 Iowa 390; and, that a testator need not declare the instrument to be his last will, Scott v. Hawk, 107 Iowa 723. An attestation clause is not essential. Hull v. Hull, 117 Iowa 738; Nixon v. Snellbaker, 155 Iowa 390. In the absence of statute, it is not necessary that the witnesses attest in the presence of each other. Hull v. Hull, 117 Iowa 738. It is immaterial that witnesses write their names in the body of the will (Franks v. Chapman, 64 Tex. 159), or in what particular part of the will they subscribe their names. Murray v. Murphy, 39 Miss. 214. As said, the only requirement which the statute makes in terms is that the paper shall be signed by the testator and signed by two competent persons.

The law declares that this paper is testamentary. It is signed by the one professing to dispose. On the same side of the paper where the alleged testator signs, John A. Ransom signs as a witness to signature. Had there been another competent person so signing and signing in that place, there could be no question that the paper was duly signed, and was executed with all formality which our statute exacts. But there is no second signature of that kind. As has been said, the paper is in the form of a deed. It has a blank for acknowledgment. The other person asserted by the appellant to be the second witness signs only at the bottom of that blank, and, instead of signing as a witness, signs, “N. Swanson, Notary Public.” If this paper was rightly rejected as a will, it seems it was done upon the narrow ground that Swanson signed as he did and where he did. It has been seen that the form and place of signing are not of the essence, nor do we know of any statute requirement that the witness must sign as witness — that is, put down his name and add “witness,” which Swanson did not do. Let us see what he did do. He added “Notary Public” below his signatux*e, and added his seal. Above these, he says: (1) That the signer of the paper was in his presence, because he says that she personally came to him; (2) that he knows her to be the identical person whose name is signed to the instrument which is above his certificate, and that she “acknowledged the execution of the same to be her voluxxtary act and deed for the purposes therein expressed.” The signing of the paper and adding “witness” states by inference only that it was done in the presence of the testator, and that she voluntarily executed the paper for the purposes expressed in the paper. Swanson says as much as this in terms. We fail to see why the additional fullness nullifies the essential fact that Swanson' declares over his signature that he saw the paper signed; that he was present and received a statement from the testator that she was signing for the purposes expressed in what she signed. It cannot be that doing more than the statute requires, and including all the essentials of what it does re* quire, fails for not obeying the statute. The greater mixst include the less.

“The important fact is whether he signed as a witness under circumstances rendering his attestation proper.” Hull v. Hull, 117 Iowa, at 710.

The fact that a county clei-k, when called upon by a testator to witness his will, attaches thereto his official cex’tificate of the acknowledgment of the due execution of the will by the testator, does not affect the validity of the clerk’s signature to such will as a witness. Franks v. Chapman, 61 Tex. 159. It is sufficient if the testator subscribes his will in the presence of one witness, or acknowledges to two that the signature is his; and, where it is subscribed in the presence of one witness, and then taken by the testator to a justice of the peace, to whom he points out his signature, declares the writing to be his will, and gets the justice to sign and certify it, not as a witness, but in his official character, the fact that he does not formally request the justice to attest the will as a witness does not impair thq force of his attestation. Payne v. Payne, (Ark.) 16 S. W. 1., If one of the subscribing witnesses to a will, being a justice of the peace, prefix to his signature a certificate of the acknowledgment of the will by the testator in the ordinary form of certificates of acknowledgments of deeds, etc., it will not vitiate his attestation. The certificate is superfluous and useless, and cannot have the effect to impair his signature, which was the essential act to be done (Murray v. Murphy, 39 Miss. 215) ; and we hold, in Hull v. Hull, 117 Iowa 738, that a subscribing witness who is competent, and who is also a notary public; may sufficiently witness the execution of a will by affixing his certificate of acknowledgment to the same, when requested by testatrix to act as a witness.

We are of opinion that the paper proposed was so signed, attested and executed as to be entitled to probate.

III. The trial court, while declining to pass upon an adjudication or an estoppel, seems none the less to have felt himself con-eluded by the decision in Ransom v. Pottawattamie County, 168 Iowa 570, wherein the very instrument now proposed as a will was involved. This statement is found in the record:

“I cannot resist the conviction that the Supreme Court was correct in saying it (this paper) was void for all purposes. Now, in view of the fact that the Supreme Court has said what it has, I think I ought to make the ruling that I have made.”

In that case, the county claimed that this paper was a presently effective conveyance. Ransom claimed the right to have title quieted, despite this paper. The sole answer of the county was that the instrument was such conveyance. Ransom urged for argument that there was no conveyance, because the pretended deed was neither delivered nor accepted, and, merely as further argument for the essential proposition that the paper was not an effective conveyance, that it Avas something other than that, to wit, a testamentary paper. If it AA^as that, then, under the issues Ave have in Ransom’s case, there was an end, and Ransom was entitled to have his title quieted. It was quite immaterial whether the paper claimed to be testamentary was attested as a will should be. Whether it was or not thus attested, the naked fact that it was a testamentary disposition established that it Avas not a conveyance presently effective, and defeated the county. In the course of the decision, a remark is made that the paper was not “executed in accordance Avith the laAv governing the execution of wills.” Self-evidently, this is not of the decision, Avholly unnecessary to it, and the further statement that said paper “is wholly ineffectual for any purpose” is also dictum.At least, it must be limited to what we had before us— the question of effective conveyance — and thus to hold that the paper was wholly ineffectual to make such conveyance. Our decision Avas that this paper was not an effective conveyance. The only relevant argument for this was that it Avas a testamentary paper. The trial court seems to have been controlled, not by Avhat was decided in the Ransom case, but by something that was merely said in the case.

The cause must be — Reversed.

Gaynor, G. J.,- Ladd and Evans, JJ., concur.  