Baker v. Cravens

• Decision Date: 01 April 1898
• Docket Number: 18,516
• Citation: 49 N.E. 1054,150 Ind. 199
• Parties: Baker v. Cravens
• Court: Indiana Supreme Court

49 N.E. 1054

150 Ind. 199

Baker v. Cravens

No. 18,516

Supreme Court of Indiana

April 1, 1898

From the Grant Circuit Court.

Affirmed.

H. M Elliott and G. M. Elliott, for appellant.

Austin De Wolf, for appellee.

OPINION

Hackney, J.

The appellant, by petition, in the nature of a proceeding in equity, sought to cancel the record purporting to probate the last will of Martha V. Baker, and to be permitted to make due probate of said will. The theory of the petition was that the record was incomplete, showing no perfect probate of said will and constituting doubt as to the appellant's title by devise under said will.

The questions presented as error arise upon exceptions to conclusions of law drawn from facts specially found. The facts material were, in substance, as follows: Martha V Baker, wife of the appellant, died testate December 1, 1892, leaving the appellant, her husband, and the appellee, her daughter, as her only legatees, devisees, and heirs at law. That by her last will she gave all of her property, real and personal, excepting five dollars, to the appellant, and said sum of five dollars she gave to her said daughter. It is found that the appellant, with one of the witnesses of said will, presented the same to the lower court for probate, and before said clerk made the usual affidavit in proof of probate, whereupon the said will was presented for probate to the Grant Circuit Court, which court made decision and entry in its probate order book as follows: "The last will and testament of Mary Baker, deceased, is now filed and presented in open court; and comes also Archibald Cranston one of the subscribing witnesses to the execution thereof by said decedent, and, being duly sworn, on his oath makes due proof thereof in the following words to wit: (Here insert.) Thereupon it is decreed by the court that said last will and testament has been duly admitted to probate and record of said county, which will and the clerk's certificate of probate are in the following words to wit: (Here insert.)" The will, the proof, and the certificate were recorded, and are set out in the transcript. The will and the proof refer to the testatrix as "Martha V. Baker, late of said county, deceased December 1st, 1892;" that she was of "full age" at the time of the execution of the will, etc. There are a number of findings having reference to a suit by the appellee to contest the will and the final dismissal thereof, but they have no influence upon the questions for decision by this court. The court's conclusions of law were "(1) that said will was duly admitted to probate; (2) that said petition to set aside said probate was not filed within the time limited by law for contesting said will; (3) that the prayer of said petitioner ought not be granted."

The exceptions to the conclusions were joint, and if...