
    Kelsey v. Kelsey et al.
    1. Will: action to construe: guardian ad litem. Where an action was brought to construe and enforce a will and the guardian ad litem of a minor legatee filed a cross-petition directly attacking its validity it will be regarded as made in an original action, contemplated by section 2353, Code; and the guardian ad litem in such an action can lawfully interpose the question of the invalidity of the will.
    2. -: practice. Where the judgment of the court below accords with the preponderance of the testimony it will not be disturbed.
    
      Appeal from Monona Circuit Court.
    
    Tuesday, December 13.
    This is a proceeding in the Circuit Court as a court of probate instituted by the executor to obtain, by an order of the court, an interpretation of the will of the testator. The defendant, Hattie Gf. Kelsey, an infant daughter of the testator, and a legatee under the will, by a guardian ad litem, answered the petition of plaintiff and filed a cross-bill in the proceeding. An order was made after the trial upon the merits, dismissing plaintiff’s petition and setting aside the probate of the will, and annulling the will itself. The plaintiff appeals. The facts of the case appear in the opinion.
    
      Joy & Wright, for appellant.
    
      G. W. McMillan, for appellee.
   Beck, J.

I. The petition shows that plaintiff is the executor appointed by the will of James M. Kelsey, deceased, which was duly admitted to probate in the Circuit Court wherein this proceeding was had. The will bequeaths a legacy of $5,000 to the wife of deceased, who died before the death of the testator, and $5,000 to Hattie Gr. Kelsey, an infant, his only child. All the remaining estate, under the interpretation of the will which plaintiff prays may be adopted by the court, was given to plaintiff, a brother of the testator, and to his father. The court appointed a guardian ad litem for defendant Hattie, who answered the petition, setting up defense to the proceeding which need not be here recited. He also filed a cross-petition, alleging, among other things, that when the will was admitted to probate Hattie was an infant of tender years, and a defense to the proceedings on the part of her grandfather was prevented by the undue haste with which they were conducted. It futher alleges that the testator, when the will was executed, was not of sound mind and was wholly incapable of attending to ordinary business affairs; that the execution of the instrument was procured by the undue influence and fraud of plaintiff, and that the property of his estate is of the value of $20,000, all of which, under the will as interpreted by plaintiff, except $4,000 devised to his only child Hattie, is set apart to plaintiff and his father. The defendant prays that the will may be declared void and of no effect.

II. The counsel for plaintiff insist that the Circuit Court had no authority in this proceeding to determine the invalidity of the will, and that the guardian ad litem was not authorized to put that question in issue in this case.

Under Code, section 2353, a will, after probate thereof, may be set aside by an original or appellate proceeding in a proper case assailing the validity of the instrument. Leighton v. Orr, 44 Iowa, 679. But counsel for plaintiff maintain that this is not an original proceeding contemplated by the statute.

The action is surely an original proceeding. This is not denied, but it is claimed that its purpose is to construe the will. This is certainly true so far as the relief claimed by plaintiff is concerned. But in this, as in all other actions, the defendant may plead as a defense whatever may defeat the claim of the plaintiff for relief. It is the policy of the law to settle the controversies of litigants without the unnecessary multiplication of suits. Hence, if in one action all the rights of the. parties may be determined, it will be done without requiring other suits to be instituted. In harmony with this policy, liberal statutes provide that counter-claims, cross-petitions and equitable answers may be filed, presenting every ground of defense to recovery recognized by the law. In this case defendant sets up in the cross-petition that the will is invalid because of the insanity of the testator. The cross action assails the will, not in a collateral way, but by a direct attack. It must be regarded, therefore, as being made in an original action, contemplated by Code, section 2353, above cited.

III. Counsel for plaintiff insist that the guardian ad litem is not authorized to set up the invalidity of the will as a defense to the action. The ground of this position is that under Code, section 2565, a minor must prosecute an action by his guardian or next friend, and that the powers of a guardian ad litem are limited by section 2566 to the defense of actions instituted against the minor.

We have seen that a defendant to an action may interpose as a defense any matter which will defeat the plaintiff’s right to recover. A guardian ad litem is not restricted by the statute to pleading certain defenses and forbidden to make others. He is authorized to defend the action and may set up any matter that will defeat it. While the invalidity of the will is set up in this action by a cross-petition, it is nevertheless pleaded as a defense. We reach the conclusion that it was lawfully interposed by the guardian ad litem.

IV. This brings us to consider the merits of the case as presented by the record. The court below found that the will was invalid. While the record does not state the ground of the court’s decision, we are warranted in the conclusion that it was the insanity of the testator. Upon this question of fact there was a conflict in the testimony. The case is not triable here de novo. Leighton v. Orr, 44 Iowa, 679. We cannot, therefore, under the often repeated rules of this court, disturb the judgment of the court below. It is not improper for us to remark that the judgment of the Circuit Court accords with the preponderance of the testimony which quite satisfactorily shows that the testator, when he executed the will was insane. His mental disorder was clearly indicated by his acts, appearance and conversation. While he probably grew better, after being taken by plaintiff to his father’s house in New Hampshire, yet upon his return to his home in Iowa, his malady seems to have returned, and in less than a year after the execution of the will he destroyed his life with his own hand.

The foregoing discussion covers all points presented by counsel in their printed argument. It is our opinion that the judgment of the Circuit Court ought to be

Akfiemed.  