Bartlett v. Manor

• Decision Date: 27 January 1897
• Docket Number: 17,835
• Parties: Bartlett et al. v. Manor et al
• Court: Indiana Supreme Court

45 N.E. 1060

146 Ind. 621

Bartlett et al. v. Manor et al

No. 17,835

Supreme Court of Indiana

January 27, 1897

From the Delaware Circuit Court.

Affirmed.

J. N Templer, E. R. Templer, R. S. Gregory and A. C. Silverburg for appellants.

Ryan & Thompson, for appellees.

Hackney J. Monks, J., was not present.

OPINION

Hackney, J.

The appellants, heirs of James L. Bartlett, instituted this proceeding in the circuit court against the appellees, heirs of Mary A. Watt.

The amended complaint alleged that in the year 1855 said James L. Bartlett, by the provisions of his will then executed, devised the lands in controversy in fee-simple to his wife, Mary A. Bartlett, who, after his death, married one Watt; that in the year 1861 said James executed another will, in which he devised to said Mary an estate in said lands for life and revoked the will of 1855; that said Mary was given the custody of said two wills, which she held until after the death of said James, when, in 1861, she offered the will of 1855 for probate in the office of the clerk of the common pleas court of Delaware county, and made proof of the execution thereof by the affidavit, taken before said clerk, of one of the attesting witnesses, and caused the said will and proof to be recorded in the proper record of wills in said office. There were allegations of the fraudulent concealment by the said Mary of said will of 1861; the ignorance of its existence by the appellants; the death of its attesting witnesses and the scrivener who drew it, and the discovery of its execution before this proceeding was instituted, in June 1892.

The relief sought was the overthrow of the will of 1855, with the steps taken in probate thereof, and the establishment and probate of the alleged will of 1861.

The circuit court overruled demurrers by the appellants to answers by the appellees, alleging that the cause of action sued upon did not accrue within the three years next preceding the bringing of the action. That ruling presents the only question for decision by this court.

There is much said by counsel of the theory of the case, as presented by the complaint, the principal difference between them relating to the inquiry as to whether the establishment and probate of the will of 1861 was the primary and controlling element of the cause of action, with the cancellation of that of 1855 together with the probate thereof as the mere incident, or that the contest of the validity of the will of 1855, with the probate thereof, was the essential feature of the cause and the establishment of the later will as an incident.

The right to set aside a will and its probate is given by statute, Burns' R. S. 1894, section 2766 (R. S. 1881, 2596), and the right to establish a lost or destroyed will is of equitable cognizance and has statutory recognition only in respect to the proof required, the record of the decree and the restraining of proceedings in relation to the estate pending the litigation. Burns' R. S. 1894, section 2777 et seq; Wright v. Fultz, 138 Ind. 594, 38 N.E. 175. This latter right, however, is as firmly settled as the former. No question is here made but that the two rights may be enforced in one proceeding, and that they may, has been recognized by this court as proper. Burns v. Travis, 117 Ind. 44, 18 N.E. 45; Roberts v. Abbott, 127 Ind. 83, 26 N.E. 565; McDonald v. McDonald, 142 Ind. 55, 41 N.E. 336.

Assuming the right to so proceed, the essential purpose and object of the complaint was to substitute for one will and its probate, another will and to secure the probate thereof.

The right of substitution involved the overthrow of the will of 1855 as clearly and as certainly as it involved the establishment of that of 1861; both were essential elements of the cause of action, and neither could have been held merely an incident to the other in pleading the facts and outlining the theory of the action. Both were of the essence of the single definite theory upon which the pleading proceeded to the attainment of the one object, that of substituting one will and its probate for another.

This conclusion is of vital importance in passing upon the sufficiency of the answers in question, since it must bring before us a consideration of the limitation which applies to an action to set aside the probate of a will and overthrow such will. If the primary question were the establishment of the will of 1861, and the other question were but an incident and not essential to the theory of the action, we would have but little consideration of any such nonessential incident.

It has been distinctly decided by this court that a proceeding to substitute one will, not probated, for another, which has been probated, involves the contest of the latter will and requires an observance of the rules of procedure declared by statute. Burns v. Travis, supra. That holding necessarily involves an adherence to the conclusion we have reached, that the theory of the case includes as one of its primary features the overthrow of the will of 1855 and its probate. If, as there held, such an attack upon the probated will is a contest thereof, we must look to the statutory provisions governing contests to learn if the limitation pleaded is there provided. Chapter 9, Art. 3, sections 2765-2776, Burns' R. S. 1894, include the provisions governing the contest of wills and their probate, prescribing in detail the procedure throughout.

Section 2766 provides that "Any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the circuit court * * * his allegation, in writing, verified by his affidavit, setting forth the unsoundness of mind of the testator, * * * or any other valid objection to its validity or the probate thereof. * * *"

Appellants' learned counsel expressly concede that under this provision the right to contest a will or the probate thereof is only given upon the condition or limitation that the complaint or petition be filed within three years after the will has been offered for probate; but they insist that by section 301, Burns' R. S. 1894, the limitation was extended. That section provides that a cause of action which has been concealed may be prosecuted within the period of limitation after discovery. It is, however, a part of the general code and one of numerous sections providing the limitation of actions under the code. One of said sections, Burns' R. S. 1894, section 295, provides that "In special cases, where a different limitation is prescribed by statute, the provisions of this act shall not apply." It would seem, therefore, that, by legislative declaration, the limitation prescribed by section 2766, supra, is not extended by said section 301. However, it is fully established that when a right is given and the procedure for its enforcement is provided by a special statute, the procedure so provided excludes resort to another or different procedure. Harrison Nat. Bank v. Culbertson, (Ind. Sup.), 45 N.E. 657; Edgerton v. Huntington School Tp., 126 Ind. 261, 26 N.E. 156; Ryan v. Ray, 105 Ind. 101, 4 N.E. 214; Storms v. Stevens, 104 Ind. 46, 3 N.E. 401; Fisher v. Tuller, 122 Ind. 31, 23 N.E. 523.

Of this proposition counsel for the appellants say: "We are free to admit that in Indiana this doctrine seems to be advocated by this court in the Fisher v. Tuller case supra; in other words, our Supreme Court seems to have laid down the rule that if the statute which gives the right of action contains its own limitations no exceptions can be ingrafted upon it by the courts, but that the law must be applied as it is written, and we take this to mean that the exceptions contained in the general statute of limitations, heretofore referred to, do not apply to such cases." Counsel make this concession consistent with their contention that section 301, supra, extends the period of limitation by their insistence that the cause of action alleged in the complaint is primarily for the establishment of a lost or destroyed will, the right to which action is not given by the special statute for the contest of wills and their...