Blake v. Blake

• Court: Indiana Appellate Court
• Writing for the Court: DAVIS, C. J.
• Citation: Blake v. Blake, 15 Ind. App. 492, 44 N. E. 488 (Ind. App. 1896)
• Decision Date: 12 June 1896
• Docket Number: 2,062
• Parties: BLAKE, ADMINISTRATOR, ET AL. v. BLAKE

44 N.E. 488

15 Ind.App. 492

BLAKE, ADMINISTRATOR, ET AL. v. BLAKE

No. 2,062

Court of Appeals of Indiana

June 12, 1896

From the Madison Circuit Court.

Judgment affirmed.

F. S Ellison, for appellants.

Goodykoontz & Ballard, and H. C. Ryan, for appellee.

OPINION

DAVIS C. J.

On the 15th of October, 1895, the appellee filed a petition in the court below, in which she represented that she was the widow of John Blake, deceased; that he made a will on the 11th of January, 1889, which was probated in said court on the 28th of May, 1892, in which he devised to her $ 400.00; that no part of said legacy had been paid to her, and that said appellant, William Blake, administrator, with the will annexed of said estate, on the 9th of August, 1895 filed his final report in the matter of said estate, and paid to the clerk of said court $ 611.86, for general distribution among the heirs of said estate. The administrator and other parties in interest appeared to said petition and filed answers. Afterwards they asked leave to withdraw answers and file a plea in abatement, which request was denied by the court.

On the 30th of January, 1896, the cause was tried by the court, and resulted in a finding in favor of appellee, on which judgment was on that day rendered for $ 400.00 against appellants, which the court ordered to be paid out of the money in the hands of the clerk. On the same day, appellants filed a motion for a new trial, which was overruled, and afterwards, within the time allowed by the court, filed bill of exceptions containing the evidence. The transcript on this appeal was filed in the office of the clerk of the Supreme Court on the 20th day of March, 1896.

The errors assigned are:

1. That the court erred in refusing to open the issues and allow the appellants to file a plea in abatement.

2. That the court erred in overruling the motion for a new trial.

On account of the failure of appellants to comply with sections 2609, 2610, and 2612, R. S. 1894, no question is presented for our consideration. Counsel for appellee ask that the appeal be dismissed. Browning v. McCracken, 97 Ind. 279; Yearley, Admr., v. Sharp, Admr., 96 Ind. 469; Miller, Admr., v. Carmichael, 98 Ind. 236; Bennett v. Bennett, 102 Ind. 86, 1 N.E. 199; Rinehart v. Vail, 103 Ind. 159; Simons v. Simons, Tr., 129 Ind. 248, 28 N.E. 702; Merritt v. Straw, Admr., 6 Ind.App. 360, 33 N.E. 657.

Waiving this question, however, we have examined the record, and find no merit in the appeal.

As to the first error assigned, there is nothing whatever in the record tending to show any abuse of discretion by the court in refusing to open the issues and allow appellants to withdraw the answers in bar and file a plea in abatement. There is no motion or affidavit in the record, except the mere recital that appellants moved "the court to withdraw papers and file plea in abatement, which motion is overruled by the court, to which ruling of the court the defendants except." No basis for the motion is stated. No reason is shown for asking such leave. No error appears in the record growing out of this ruling. The evidence, without conflict, fully sustains facts hereinbefore stated. It further appears that on the 28th of December, 1885, appellee and said John Blake entered into an ante-nuptial agreement, by the terms of which she was to claim no interest in his estate, real or personal, in the event she survived him, and that after his death she filed a claim for $ 500.00, her statutory allowance, and $ 600.00, the value of a house, which, on...