Brelsford v. Aldridge

• Decision Date: 11 June 1908
• Docket Number: No. 6,140.,6,140.
• Parties: BRELSFORD v. ALDRIDGE et al.
• Court: Indiana Appellate Court

42 Ind.App. 106

84 N.E. 1090

BRELSFORD

v.ALDRIDGE et al.

No. 6,140.

Appellate Court of Indiana.

June 11, 1908.

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Action by Eliza J. Brelsford against Mary E. Aldridge and others. From a judgment for defendants, plaintiff appeals. Reversed, remanded, and new trial directed.

John A. Kersey and Dan Dilla, for appellant. P. B. Manley, S. L. Stricles, and E. E. Friedline, for appellees.

WATSON, J.

This was an action by appellant, only child of decedent, Robert F. Wilfley, to have declared void a will alleged to have been executed by decedent. The allegations of the complaint were, in substance: (1) That the will was unduly executed. (2) It was obtained by the undue influence of Mary E. Aldridge, then Mary E. Oler. (3) It was procured by the undue influence of Amos L. Cray. (4) It was obtained by the undue influence of Mary E. Aldridge and Amos L. Cray. (5) At the time of executing said pretended will, and for 10 years theretofore, decedent was a person of unsound mind. (6) That though said will devised and bequeathed all real and personal property to decedent's “beloved wife, Mary E. Wilfley,” who is appellee Mary E. Aldridge herein, at the time of executing said will said beneficiary was not his wife, nor did she become so until nine days after such pretended execution, but that for more than six months theretofore she had cohabited illicitly with decedent; she being at the time the wife of one Martin Oler, from whom she procured a divorce June 9, 1902. That she married decedent June 24, 1902, but the will purported to have been executed June 15, 1902. (7) After setting out practically the same allegations as were contained in the sixth specification, it was alleged, in addition, that at the time Mary E. Aldridge became acquainted with decedent there was on file a divorce proceeding against her by her then husband, Martin Oler, but that a judgment was not rendered; that nevertheless decedent took her to his home and kept her there until his death, marrying her in the meantime, as averred above. The complaint prayed that a receiver for decedent's estate be appointed, and that the will be vacated and set aside. On motion of appellee Mary E. Aldridge, the court struck out the seventh specification of the complaint, to which action an exception was duly taken. Appellee Cray separately demurred to the complaint for want of facts, but the demurrer was overruled. Appellee Mary E. Aldridge then answered in two paragraphs: (1) General denial; (2) admitting the will, and that it purported to have been executed June 15, 1902, but averring that in fact it was executed after the marriage of this appellee with decedent, that the date aforesaid was an error by the scrivener, and was not the correct date of the will, and that this appellee denies all other averments in the complaint. Appellant filed a reply in general denial to the answer, and, the cause being at issue, it was submitted to a jury, which returned a verdict for appellees. Judgment was rendered on the verdict.

The errors assigned for consideration in this court are: (1) Striking out the seventh specification of the complaint; (2) overruling the motion for a new trial. The first assignment is not discussed in the briefs. Therefore it is deemed to be waived. Payne v. Moore, 31 Ind. App. 360, 66 N. E. 483, 67 N. E. 1005;Robinson & Co. v. Hathaway, 150 Ind. 679, 50 N. E. 883.

The reason first discussed by appellant for granting a new trial is that the court erred in refusing to allow appellant to testify to the friendly relations between herself and decedent. The objection was based on the statute (Burns' Ann. St. 1908, § 522; Burns' Ann. St. 1901, § 507), wherein it is provided: “In all suits by or against heirs or devisees, founded on a contract with or a demand against the ancestor, to obtain title to or possession of property, real or personal, of, or in right of, such ancestor, or to affect the same in any manner,...