IN THE MATTER OF THE ESTATE OF DORIS E. EGGERS, Deceased, PHILLIP EGGERS, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-315 / 06-0487
Filed June 27, 2007
IN THE MATTER OF THE ESTATE OF
DORIS E. EGGERS, Deceased,
PHILLIP EGGERS,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla,
Judge.
Phillip Eggers appeals from the district court’s denial of his application to
set aside Doris Eggers’s will. AFFIRMED.
Steven Howes of Howes Law Firm, P.C., Cedar Rapids, for appellant.
Daniel Seufferlein of Klinger, Robinson & Ford, L.L.P., Cedar Rapids, for
appellee.
Heard by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
2
ZIMMER, J.
Phillip Eggers appeals from the district court’s denial of his application to
set aside Doris Eggers’s will.
He contends the court erred in admitting his
mother’s will to probate because the document was not properly executed.
Phillip also argues that a deposition exhibit, which was not admitted into
evidence by the trial court, should be considered as part of the appellate record
when we review this case. We affirm.
I.
Background Facts and Proceedings
Doris Eggers died on February 24, 2001. At the time of her death, Doris
had four adult children:
Doug Eggers, Paula Giarrusso, Daniel Eggers, and
Phillip Eggers. Doris executed a last will and testament on January 9, 2001.
Attorney Robert Murphy drafted the will.
Under the will, Phillip and Daniel
received specific bequests of personal property, and Doris bequeathed the rest
of her estate equally to Doug and Paula. 1 The will named Doug the executor of
the estate.
During April 2001 Doris’s will was admitted to probate, and Doug was
appointed as the executor of her estate. Phillip filed an application to set aside
his mother’s will.
Trial on Phillip’s application was scheduled and reset on
numerous occasions. Several continuances were granted because Doug was
serving in the military.
The will contest was tried to the court on October 27, 2005. Phillip filed an
application to reopen the record on November 1, 2005. The district court granted
1
Under Article II of the will, Phillip was awarded Doris’s 1991 GMC Jimmy, and he took
possession of the vehicle.
3
Phillip’s application and received additional evidence on January 30, 2006. On
February 21, 2006, the court issued a ruling denying Phillip’s request to set aside
his mother’s will. Phillip has appealed.
II.
Scope and Standards of Review
We review a will contest for the correction of errors at law. In re Estate of
Lachmich, 541 N.W.2d 543, 545 (Iowa Ct. App. 1995). Findings of facts in a law
action are binding on us if supported by substantial evidence. Iowa R. App. P.
6.14(6)(a). The sufficiency of the evidence to support the court’s finding must be
viewed in the light most favorable to the contestant. In re Estate of Baessler, 561
N.W.2d 88, 93 (Iowa Ct. App. 1997), rev’d on other grounds by Jackson v.
Schrader, 676 N.W.2d 599, 604 (Iowa 2003).
III.
Deposition Exhibit
We first address Phillip’s argument regarding a deposition exhibit that he
offered at the time of trial.
During trial, Phillip offered the deposition of Christine Crain as an exhibit.
Crain worked for Murphy at his law office in Dubuque in 2001. She did not testify
at trial. The estate objected to the introduction of Crain’s deposition for a variety
of reasons. The trial court reserved ruling on the objections lodged by the estate
at the time the deposition was offered. The record reveals the court never made
a ruling on the admissibility of the deposition, and the deposition was never
received into evidence. The court did not refer to the deposition in its ruling.
4
Phillip now contends we should consider the deposition as part of the record on
appeal even though it was not admitted into evidence at trial. 2 We disagree.
Phillip did not file an Iowa Rule of Civil Procedure 1.904(2) motion for
enlargement or amendment of the court’s findings or conclusions, and he did not
request a ruling on the estate’s objection to Crain’s deposition. We will generally
review only those issues that have been ruled upon by the district court. Vincent
v. Four M Paper Corp., 589 N.W.2d 55, 64 (Iowa 1999). When a district court
fails to rule on an issue properly raised by a party, the party who raised the issue
must file a motion requesting a ruling in order to preserve error for appeal. Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Phillip offered Crain’s deposition
as an exhibit at trial. It was his obligation to request a ruling from the court on the
admission of the exhibit.
In the absence of a district court ruling on the
admissibility of the deposition, we have nothing to review. We have no authority
to consider evidence that was not admitted at trial, and we decline to consider
the deposition as part of the record on appeal.
IV.
Execution of the Will
Phillip contends the court erred in admitting Doris’s will to probate
because the document was improperly executed. He maintains the will was not
properly witnessed.
Iowa Code section 633.279 (2001) sets forth the requirements for
assessing the validity of the will at issue here. It provides:
All wills and codicils, except as provided in section 633.283, to be
valid, must be in writing, signed by the testator, or by some person
in the testator’s presence and by the testator’s express direction
2
Phillip does not claim any error by the trial court in the handling of the exhibit.
5
writing the testator’s name thereto, and declared by the testator to
be the testator’s will, and witnessed, at the testator’s request, by
two competent persons who signed as witnesses in the presence of
the testator and in the presence of each other.
Proof of execution of a will is not dependent upon the recollection or
memory of the subscribing witnesses or upon their recollection as to the
particulars attending the execution of the will. In re Klein’s Estate, 241 Iowa
1103, 1110, 42 N.W.2d 593, 597 (1950). We now turn to the evidence presented
in this case.
In 2001 Attorney Murphy maintained a law office in Dubuque and a
satellite office in Independence, Iowa. In January 2001 Doris was living in Cedar
Rapids. Because she was ill and undergoing treatment for cancer, Doris was
unable to drive to Murphy’s law office in Dubuque or Independence to execute
her will. Murphy had known Doris for a long period of time, and he agreed to
make the trip to Cedar Rapids so she could execute the will. On January 9,
2001, Murphy drove to Cedar Rapids to Doris’s home where she lived with her
son, Doug.
Murphy had originally drafted the will as a self-proving will; however, there
were not a sufficient number of witnesses present, so Doug called one of Doris’s
neighbors, Roy W. Parker Jr., and asked Parker if he would come to Doris’s
home to witness her will. Parker came to Doris’s home and was present with
Doug, Doris, and Murphy when the will was executed.
At trial Parker testified he suffered from memory problems and takes
medication for his condition. Although he was unable to recall the specifics of the
events that occurred in Doris’s home on January 9, 2001, he recalled being
6
present in the home, discussing the document, and signing the document.
Parker also testified he had been threatened and intimidated by Phillip prior to
trial. 3
Murphy testified he was present on January 9, 2001, when Doris executed
the will at her home. He testified that prior to the execution of the will, he asked
Doris whether she was over eighteen years of age, whether she was of sound
mind, whether the will disposed of her property as she wished, and whether she
wanted Parker and Murphy to witness the will.
Murphy also testified Doris
declared the will to be her last will and testament. Doug’s testimony confirmed
that he, Doris, Murphy, and Parker were all present during the execution of the
will.
After Doris died, Murphy reviewed the will and realized it could not be filed
as a self-proving will. 4
Murphy filed a “Testimony of Subscribing Witness”
document on April 26, 2001. Murphy testified there were scrivener’s errors on
the document because he included the incorrect city and county and referred to
Roy Parker as William Parker.
Murphy filed an “Amended Testimony of
Subscribing Witness” on April 27, 2005, but failed to notarize the document. The
clerk returned the document to Murphy, so he subsequently had the document
notarized and refiled.
3
Parker testified Phillip “threatened me to go to prison if I didn’t act right or didn’t reply
right or he said I would have fourteen years of prison. And I took that to the police
station that he had threatened me.” Murphy testified that after Phillip filed his application
to set aside the will, Phillip left threatening messages on his answering machine. Phillip
admitted he drove to Murphy’s office to force Murphy to give him the inheritance, and he
also admitted he threatened to “beat him [Murphy] up.” In addition, Phillip left messages
for Doug while Doug was serving in Iraq that said Doug would likely be killed in the war.
4
Murphy testified that his legal secretary at the time notarized the will without his
knowledge or permission after he brought the will back to Dubuque.
7
The district court found substantial evidence supported the conclusion that
Doris’s will was validly executed. The court found Doris signed the will in the
presence of Murphy and Parker, they both observed her sign the will, and they
both signed the will in Doris’s presence and in the presence of each other. The
court also found that despite the shortcomings in Parker’s memory, the record
clearly revealed Doris validly executed the will.
The district court did not find Phillip to be a credible witness. Furthermore,
the court noted Phillip’s attacks on Murphy’s credibility relied “solely on
conjecture and supposition.”
The court concluded this “innuendo [was] not
sufficient . . . to conclude Mr. Murphy did not give credible testimony.”
Upon our review, we find no reason to disagree with the district court’s
conclusions. Three witnesses, Murphy, Parker, and Doug, all testified the will
was executed on January 9, 2001, at Doris’s home in Cedar Rapids. The two
witnesses to the will observed Doris sign the will and signed the will in the
testatrix’s presence and in the presence of each other. Furthermore, Murphy
testified Doris declared the will to be her last will and testament. We conclude
Doris’s will was property executed, and we affirm the district court’s decision to
deny Phillip’s application to set aside the will.
V.
Conclusion
We affirm the district court’s decision to deny Phillip’s application to set
aside his mother’s will.
AFFIRMED.
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