11 N.E. 458 (Ind. 1887), 11,758, Deig v. Morehead

Docket Nº:11,758
Citation:11 N.E. 458, 110 Ind. 451
Opinion Judge:Howk, J.
Party Name:Deig, Executor, et al. v. Morehead
Attorney:A. P. Hovey and G. V. Menzies, for appellants. W. P. Edson and E. M. Spencer, for appellee.
Case Date:April 20, 1887
Court:Supreme Court of Indiana
 
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Page 458

11 N.E. 458 (Ind. 1887)

110 Ind. 451

Deig, Executor, et al.

v.

Morehead

No. 11,758

Supreme Court of Indiana

April 20, 1887

From the Posey Circuit Court.

The judgment is affirmed, with costs.

A. P. Hovey and G. V. Menzies, for appellants.

W. P. Edson and E. M. Spencer, for appellee.

OPINION

[110 Ind. 452] Howk, J.

This was a suit by appellee, Wilhelmina Morehead, against the appellants, to contest the validity of a certain paper writing, purporting to have been executed on the 11th day of March, 1883, by one George Frank Maurer, as his last will and testament.

Appellee's complaint was filed on the 9th day of May, 1883, and contained two paragraphs. In the first paragraph, appellee alleged that, on the 11th day of March, 1883, George F. Maurer died in Gibson county, Indiana, leaving as his only heirs at law the appellee, Wilhelmina, and appellants, William Charles Maurer and Andrew John Maurer, who were his only children; that said George F. Maurer, at the time of his death, was seized and possessed of property, real and personal, situate in Posey county this State, of the value of ten thousand dollars or more; that said George F. Maurer died intestate, leaving, however, a pretended will, a copy of which was therewith filed, purporting to devise all of his estate, real and personal, to the appellee and the appellants, and nominating appellant, John B. Deig, executor of such pretended will, and appointing him guardian of the appellants William Charles and Andrew John Maurer; that at the time of the making of such supposed will by said George F. Maurer, he, the said George F. Maurer, was not of sound mind; and that the said George F. Maurer never executed such pretended will, nor signed his name thereto, and, therefore, such pretended will was not duly executed by him. Wherefore, etc.

The second paragraph of appellee's complaint alleges substantially the same

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general facts as the first paragraph, except that it is not charged, in such second paragraph, that the said George F. Maurer, at the time of his making such pretended will, was of unsound mind, and except, also, that the second paragraph charges more specifically than the first [110 Ind. 453] paragraph of complaint, the undue execution of such pretended will, by alleging that the same was not signed by the said George F. Maurer, nor by any other person at his request, or with his knowledge or consent, in the presence of two witnesses, nor was his signature thereto ever attested by two witnesses, and, therefore, appellee averred that such pretended will of the said George F. Maurer was never executed by him, as his will. Wherefore, etc.

Appellants jointly answered by a general denial of the complaint. The issues joined were tried by a jury, and a verdict was returned for the appellee; and over appellants' motion for a new trial, the court adjudged and decreed that the probate of the will of George F. Maurer, deceased, should be set aside, and declared and decreed such will to be null and void, and further adjudged that appellee should recover of the appellants her costs and charges in this behalf expended.

Errors are assigned here by the appellants, which call in question the rulings and action of the court below, (1) in submitting the issues in this case to a jury for trial, over appellants' objections, (2) in directing the panel of the jury to be filled from the bystanders, instead of filling vacancies from the regular panel, as selected by the jury commissioners, (3) in directing the sheriff of the county to fill vacancies in the regular panel from the bystanders, instead of from names selected by the jury commissioners, and in permitting those persons, selected by the sheriff from the bystanders, to be sworn and empanelled as a part of the jury to try the issues in this cause, over appellants' objections, and (4) in overruling appellants' motion for a new trial.

We will consider these alleged errors, and decide the questions arising thereunder, in the same order in which appellants' learned counsel have presented and discussed them in their able and exhaustive brief of this cause.

1. Appellants' counsel earnestly insist that the circuit court erred in submitting the issues in this case to a jury for [110 Ind. 454] trial, over their objections. It is shown by a bill of exceptions, properly in the record, that when the cause was at issue and called for trial, appellee demanded a jury to try the issues joined; "whereupon the defendant John B. Deig objected to the trial of this cause by a jury at the time, and insisted upon the trial of said issues by the court, and thereupon the court overruled the objection of defendant, and caused a jury to be empanelled to try the issues herein." This is all that is shown by the bill of exceptions, in relation to the action of the court in overruling appellants' objection to the trial of the cause by a jury...

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