Burkhart v. Gladish

Citation24 N.E. 118, 123 Ind. 337
Case DateApril 22, 1890
CourtSupreme Court of Indiana

123 Ind. 337
24 N.E. 118

Burkhart et al.
v.
Gladish et al.

Supreme Court of Indiana.

April 22, 1890.


Appeal from circuit court, Pike county; O. M. Welborn, Judge.

Rev. St. Ind. 1881, § 499, provides that “in all suits by or against heirs or devisees, founded on a contract with or demand against the ancestor, to obtain title to or possession of property * * * of such ancestor, or to affect the same, * * * neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor.”


J. E. McCullough, J. H. Miller, E. P. Richardson, and A. H. Taylor, for appellants. Townsend, Flower & Smith and Posey & Honeycut, for appellees.

Coffey, J.

This was an action by the appellees against the appellants to contest and set aside the last will of Peter Burkhart. The complaint, omitting the caption and formal parts, is substantially as follows: “That Peter Burkhart departed this life on the 20th day of July, 1887, leaving the plaintiffs and defendants herein, except Noah Burkhart, as his only children and heirs at law; that on the 22d day of July, 1887, a certain writing, purporting to be his last will and testament, bearing date March 14, 1885, was presented to and admitted to probate by the clerk of the Pike circuit court, and was filed and recorded in the record of wills in said county, and letters were thereupon issued to the defendants Noah Burkhart and Noah A. Burkhart, as executors of said pretended will, who thereupon qualified, and took charge of all the property, both real and personal, named in said pretended will, which estate is of the probable value of twelve thousand dollars, [a copy of said pretended will is filed with the complaint;] that by the terms of said pretended will the defendants, Noah A. Burkhart, Adam G. Burkhart, General Burkhart, and Caroline Morgan are named as devisees and legatees therein, and are given thereby the whole of the property of the said Peter Burkhart, except thirty-six and 60-100 acres of land, which is by the terms of said pretended will set apart to discharge the debts which the said Peter Burkhart owed at the time of his death, with the provision that whatever might be left after the payment of said debts should be divided equally among the plaintiffs and defendants herein, except the said Noah Burkhart; that the personal estate of the said Peter Burkhart, together with said land, will not be more than sufficient to pay said debts; that the provisions of said pretended will entirely exclude the plaintiffs, who are entitled, as the heirs of said Peter Burkhart, to a five-ninths part in value of said estate; that said pretended will is invalid for the following reasons: The said Peter Burkhart, at the time of the execution of said pretended will, and for many years prior hereto, and down to the day of his death, was not the possessor of a sound mind and disposing memory, but on the contrary, was in a state of partial insanity, produced by the long continued and excessive use of alcoholic stimulants, and was afflicted with and subject to insane delusions concerning his wife and these plaintiffs, and the husbands of said Selina J., Harriet A., and Susan; that for many years prior to the execution of said pretended will he was continually under the influence of said insane delusion, and was furiously jealous of his wife, a woman of spotless reputation for chastity, and constantly charged her with licentious intentions and conduct towards every male person with whom she chanced to

[24 N.E. 119]

have any conversation; that, influenced by said insane delusion, he openly charged his said wife with having criminal intercourse with the husbands of his and her own daughters, and with having borne children by them; that for fifteen years next before the execution of said pretended will he made his wife and said children the victims of his insane jealous rage, and would, at divers times within said period, have murdered his said wife on account of said insane delusion, but he was prevented from so doing by the timely interference of other parties.”

E. P. Richardson was appointed guardian ad litem for General Burkhart, who was shown to be a minor, and filed an answer as such, denying the allegations in the complaint. The other appellants, being adults, also filed the general denial to the complaint, and the cause was at issue. The cause was tried by a jury, who returned a general verdict for the appellees, and with said general verdict they also returned answers to special interrogatories. The appellants filed a motion and reasons for a new trial, which was overruled and excepted to. The court also overruled a motion in arrest of judgment, and then rendered a decree setting aside the will mentioned in the complaint, and revoking the probate thereof. The errors assigned are: (1) That the court erred in overruling the motion for a new trial; (2) that the court erred in overruling the motion in arrest of judgment; (3) that the complaint does not state facts sufficient to constitute a cause of action.

The sufficiency of the complaint is questioned for the...

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52 practice notes
  • Stockgrowers' Bank of Wheatland v. Gray, 786
    • United States
    • United States State Supreme Court of Wyoming
    • February 5, 1916
    ...Minn. 172, 43 N.W. 849; Hayes v. Fine, 91 Cal. 391, 27 P. 772; Sievers v. Peters Box Co., 151 Ind. 642, 50 N.E. 877; Burkhart v. Gladish, 123 Ind. 337, 24 N.E. 118; Boss v. State, 11 Ind.App. 257, 39 N.E. 197; Baker v. Railroad, 101 F. 545.) The affidavits filed with reference to newly disc......
  • Reynolds v. Porter, No. 7726.
    • United States
    • Court of Appeals of Texas
    • November 23, 1932
    ...R. A. 64; Lamb v. Lippincott, 115 Mich. 611, 73 N. W. 887; Sutton v. Reagan, 5 Blackf. (Ind.) 217, 33 Am. Dec. 466; Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118; Louisville, N. A. & C. Ry. Co. v. Miller, 141 Ind. 533, 37 N. E. 343; Rarick v. Ulmer, 144 Ind. 25, 42 N. E. 1099; Stutsma......
  • Ratliff v. Baltzer's Adm'r
    • United States
    • United States State Supreme Court of Idaho
    • February 14, 1907
    ...v. Lambeck, 47 Ga. 133; Trumbull v. Gibbons, 22 N.J.L. 117; Potter v. Jones, 20 Or. 252, 25 P. 769, 12 L. R. A. 161; Burkhart v. Gladdish, 123 Ind. 337, 24 N.E. 118; Gordon v. Whitlock, 92 Va. 723, 24 S.E. 342; In re Redfield, 116 Cal. 637, 48 P. 794.) Section 2411, Revised Statutes, was ta......
  • Ramseyer v. Dennis, No. 22986.
    • United States
    • Indiana Supreme Court of Indiana
    • May 31, 1918
    ...the nature of the business in which he was engaged. [119 N.E. 718]Ditton v. Hart, 175 Ind. 181, 93 N. E. 961;Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118; Staser v. Hogan, 120 Ind. 207, 216, 21 N. E. 911, 22 N. E. 990; Kentworthy v. Williams, 5 Ind. 375;Brelsford v. Aldridge, 42 Ind. App......
  • Request a trial to view additional results
52 cases
  • Stockgrowers' Bank of Wheatland v. Gray, 786
    • United States
    • United States State Supreme Court of Wyoming
    • February 5, 1916
    ...Minn. 172, 43 N.W. 849; Hayes v. Fine, 91 Cal. 391, 27 P. 772; Sievers v. Peters Box Co., 151 Ind. 642, 50 N.E. 877; Burkhart v. Gladish, 123 Ind. 337, 24 N.E. 118; Boss v. State, 11 Ind.App. 257, 39 N.E. 197; Baker v. Railroad, 101 F. 545.) The affidavits filed with reference to newly disc......
  • Reynolds v. Porter, No. 7726.
    • United States
    • Court of Appeals of Texas
    • November 23, 1932
    ...R. A. 64; Lamb v. Lippincott, 115 Mich. 611, 73 N. W. 887; Sutton v. Reagan, 5 Blackf. (Ind.) 217, 33 Am. Dec. 466; Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118; Louisville, N. A. & C. Ry. Co. v. Miller, 141 Ind. 533, 37 N. E. 343; Rarick v. Ulmer, 144 Ind. 25, 42 N. E. 1099; Stutsma......
  • Ratliff v. Baltzer's Adm'r
    • United States
    • United States State Supreme Court of Idaho
    • February 14, 1907
    ...v. Lambeck, 47 Ga. 133; Trumbull v. Gibbons, 22 N.J.L. 117; Potter v. Jones, 20 Or. 252, 25 P. 769, 12 L. R. A. 161; Burkhart v. Gladdish, 123 Ind. 337, 24 N.E. 118; Gordon v. Whitlock, 92 Va. 723, 24 S.E. 342; In re Redfield, 116 Cal. 637, 48 P. 794.) Section 2411, Revised Statutes, was ta......
  • Ramseyer v. Dennis, No. 22986.
    • United States
    • Indiana Supreme Court of Indiana
    • May 31, 1918
    ...the nature of the business in which he was engaged. [119 N.E. 718]Ditton v. Hart, 175 Ind. 181, 93 N. E. 961;Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118; Staser v. Hogan, 120 Ind. 207, 216, 21 N. E. 911, 22 N. E. 990; Kentworthy v. Williams, 5 Ind. 375;Brelsford v. Aldridge, 42 Ind. App......
  • Request a trial to view additional results

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