Baptist Church in New Providence v. Stalker

Decision Date08 March 1961
Docket NumberNo. 2,No. 19469,19469,2
Citation132 Ind.App. 37,172 N.E.2d 888
PartiesBAPTIST CHURCH IN NEW PROVIDENCE (Borden), Indiana, et al., Appellants, v. James B. STALKER, Jr., et al., Appellees
CourtIndiana Appellate Court

Cooper, Cooper, Cooper & Cox, Madison, Orbison, Rudy & O'Connor, New Albany, Owen Voigt, Jeffersonville, for appellants.

Metford & Hensley, Madison, Inezellen Bales, Robert H. Orbison, Indianapolis, Homer D. Smith, Jeffersonville, Baker & Orbison, Indianapolis, of counsel, for appellees.

PFAFF, Presiding Justice.

Appellees James B. Stalker, Jr., Frances C. Stalker, and Dorothy Adams, as the only heirs of John M. Stalker, deceased, brought this action in the Clark Circuit Court to resist the probate of the Purported Last Will and Testament of said decedent. By proper affidavit this cause was venued to the Jefferson Circuit Court.

The issues were formed by the appellees' complaint as amended by interlineation and the appellants' answer thereto in admission and denial, in compliance with Rule 1-3 of the Supreme Court. The complaint as amended alleged the appellees were the heirs at law of the decedent, and the last will and testament of the decedent was invalid and void for the following reasons:

1. Undue execution in that the witnesses thereto did not sign said instrument in the presence of each other.

2. Failure of the witnesses to see the decedent sign the will, failure to see his signature on the will, and failure at any time to hear the decedent acknowledge his signature on the will.

3. Failure of a witness, who was a notary public, and who signed her name Audrey Wright, when her married name was Audrey Wright Gettelfinger, to see the testator sign the instrument, and to see the other two witnesses sign the instrument.

4. Execution under duress.

5. Fraud.

6. The corpus of the trust created under the terms of the will did not vest rendering the will in violation of the rule against perpetuities.

7. The trust created under the terms of the will violated the statute on accumulations and the rule against remoteness.

8. The trust created by the will did not comply with the statutory requisites.

It further averred that the will offered for probate on January 22, 1959, bore the date of February 22, 1951, and a contrary date of March 22, 1951.

The Pretended Last Will and Testament of the said John M. Stalker which was offered for probate and was duly impounded, is as follows:

'February 22, 1951

'I, John M. Stalker, Borden, Ind. leave all my property of every nature to the Baptist Church in New Providence (Borden) Ind.

'Provision 1--With this property or proceeds therefrom a trust fund shall be established with a responsible trust company----

'Provision 2--Only the net income shall be used and for the following purposes, to-wit:

'(a) The annual dues for the upkeep and care of the Stalker Lot in Walnut Ridge Cemetery shall be paid.

'(b) One-half of the remainder to hold services in the said church----

'(c) The remainder or what portion is necessary shall be used for upkeep and repair of the church building, or replacement if destroyed; fencing of the lot; additions if required--fuel, lighting and insurance----

'(d) Any portion of the income unused shall be added to the principal of the fund and remain a permanent part thereof----

'Provision 3--Any and all bona fide indebtedness against my estate shall be paid in full----

'Provision 4--Marvin Wright, Borden, Ind. and Rev. C. D. Strother, New Albany, Ind. shall be made co-trustees of fund----

'Signed--John M. Stalker

'Mrs. Audrey Wright Gettelfinger was given her furniture at the time of her marriage, and no further consideration shall be given that provision.

'June 3, 1957.

'Witnesses

'Sylvia Porter

'Sylvia Porter

'Bernard Gettelfinger

'Bernard Gettelfinger

'STATE OF INDIANA

'COUNTY OF CLARK:

'Signed in my presence and in the presence of each other this 22nd day of March, 1951.

'Signed: Audrey Wright

'Notary Public

'(N. P. Seal)

'My Commission expires Feb. 21, 1952.'

Trial was had by a jury. At the conclusion of the appellees' evidence the appellants moved the court to direct the jury to return a verdict for them. At the same time appellees moved the court to direct the jury to return a verdict for them on the issues raised by their complaint on their allegations the will was invalid by reason of the fact it violated the rule against perpetuities, the statute on accumulations, and the rule against remoteness.

The court overruled the motion of the appellees to direct the jury to return a verdict for them and sustained the motion of the appellants to direct the jury to return a verdict for them.

Pursuant to the court's direction the jury returned a verdict for appellants. Appellees filed a motion for a venire de novo which was overruled. Judgment was entered on the verdict of the jury.

Appellees, pursuant to the provisions of the Acts of 1959, ch. 25, Sec. 1-6, (Sec. 2-3201, Burns' 1946 Replacement, Supp.) 1 filed their motion for a new trial averring as follows:

1. The verdict of the jury is not sustained by sufficient evidence. $2. The verdict of the jury is contrary to law.

3. Error of law occurring at the trial in each of the following particulars:

(a) The Court erred in overruling plaintiffs' motion for venire de novo.

(b) The Court erred in sustaining defendants' motion for a directed verdict herein.

(c) The Court erred in giving peremptory instructions directing the jury to return a verdict in favor of the defendants and against the plaintiffs.

4. The plaintiffs have, since the trial, discovered evidence material to the action, as follows:

(a) Edwin C. Schroeder, an expert in the field of handwriting, questioned documents, inks, typewriting and related subjects, has examined the purported original last will and testament of John M. Stalker and will testify that after his examination and submitting said will to numerous scientific tests, he is of the opinion that the handwriting of the decedent, John M. Stalker, was written after the statement on said will:

'Mrs. Audrey W. Gettelfinger was given her furniture at the time of her marriage and no further consideration shall be given that provision June 3 1957'

all of which more fully appears by the affidavits of Edwin C. Schroeder and attached Exhibit A. James B. Stalker, Jr., and Robert H. Orbison filed herewith and made a part of this motion for a new trial, which evidence was unknown to these plaintiffs and to their counsel at the time of the trial, and could not, with reasonable diligence, have been discovered and produced at the time of the trial for the reasons that:

1. The purported original will of John M. Stalker was either in the hands of the attorneys for the defendants or was impounded by the Clerk of the Clark County Circuit Court from the date of the death of the said John M. Stalker to the date of the trial in the Jefferson Circuit Court.

2. The two witnesses, Bernard Gettelfinger and Sylvia Porter and the Notary Public, Audrey Gettelfinger, whose names appeared on said purported will changed their sworn statements which they had made January 16, 1959, and their unsworn statements which they had made on January 15, 1959, which statements conclusively proved the undue execution of the purported last will of John M. Stalker and at the time of the trial entirely repudiated such statements and their testimony at the trial in this court was directly opposite to their former statements, at which time it was too late for these plaintiffs or their counsel to obtain the evidence which was discovered after the trial of this cause.

3. By reason of th sworn statements made by Bernard Gettelfinger, Sylvia Porter and Audrey Gettelfinger on January 15 and 16, 1959, counsel for plaintiffs was convinced that he did not need any further evidence in order to sustain the allegations of the complaint in regard to the undue execution of the will and so advised plaintiffs.

In support of the motion for a new trial the appellees filed two affidavits of James B. Stalker, Jr., one of Robert H. Orbison, and one of Edwin C. Schroeder. The first affidavit averred that before the trial of this cause he made diligent inquiry for evidence to sustain the allegations of the complaint; that on January 15, 1959, and January 16, 1959, he interviewed the three persons whose names appeared on the purported will as witnesses to ascertain their knowledge of the matters in controversy and they stated to him on both said dates the facts as they knew them. The affidavit then avers:

'That affiant did not know until the trial of this cause that it would be necessary to have said last will examined by a handwriting expert; that after the trial of this cause affiant had Edwin C. Schroeder of the Indiana State Police examine said will and affiant has now discovered that in the opinion of the said Edwin C. Schroeder the signature of John M. Stalker on said will was signed after the other signatures appearing thereon and after the statement

"Mrs. Audrey W. Gettelfinger was given her furniture at the time of her marriage and no further consideration shall be given that provision June 3 1957'

which testimony becomes most important in the light of the statements under oath of Audrey Gettelfinger and Sylvia Porter at the time of the trial that the above quoted portion of the will was not there when they signed the will March 22, 1951; that he could not, by reasonable diligence, have discovered that the said Edwin C. Schroeder would testify to said facts before the trial of this cause and he cannot prove said facts by any other witness, and he believes said facts to be true as set out in the affidavit of the said Edwin C. Schroeder which is also attached to this motion for a new trial.'

The pertinent averments of the affidavit of Robert H. Orbison, one of the attorneys for appellees, are as follows:

'He has discovered new evidence which he could not, with...

To continue reading

Request your trial
2 cases
  • Farm & Home Ins. Co. v. Konradi
    • United States
    • Indiana Appellate Court
    • 30 d2 Junho d2 1964
    ...which he was entitled under the law. Kalbac v. Kalbac (1961), 132 Ind.App. 593, 594, 177 N.E.2d 279; Baptist Church etc. et al. v. Stalker et al. (1961), 132 Ind.App. 37, 53, 172 N.E.2d 888 (Transfer The Supreme Court has said that alleged errors are not presented for review under a brief r......
  • Kelly v. Bunch
    • United States
    • Indiana Appellate Court
    • 4 d3 Outubro d3 1972
    ...Pennsylvania Railroad Co. (1963), 136 Ind.App. 1, 194 N.E.2d 828, 2 Ind.Dec. 511 (transfer denied); Baptist Church, etc. et al. v. Stalker et al. (1961), 132 Ind.App. 37, 172 N.E.2d 888 (transfer In the instant case, the affidavits attached to the motion to correct errors along with the oth......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT