Burnett v. Milnes
| Decision Date | 25 February 1897 |
| Docket Number | 18,030 |
| Citation | 46 N.E. 464,148 Ind. 230 |
| Parties | Burnett v. Milnes et al |
| Court | Indiana Supreme Court |
Rehearing Denied June 11, 1897.
From the Bartholomew Circuit Court.
Affirmed.
M. D Emig, Marshall Hacker and Charles F. Remy, for appellant.
George W. Cooper, C. B. Cooper, S. Stansifer, C. S. Baker and W. H Everroad, for appellees.
This action was brought by appellees against appellant to set aside, on account of the alleged fraud of appellant in procuring the same, a judgment of the Bartholomew Circuit Court refusing to admit to probate the last will and testament of Jeanette Burnett, deceased, and adjudging the same to be null and void. The cause was tried by the court, and there was a finding in favor of appellees, and over a motion for a new trial, judgment was rendered in favor of appellees setting aside said judgment.
The first error urged calls in question the action of the court in overruling the demurrer to the complaint. The allegations of the complaint supporting the charge of fraud in procuring the judgment which it is sought to set aside are substantially as follows:
Jeanette Burnett, Sr., a widow, having only one child and heir, William Burnett, the appellant, owned a large tract of land, and personal property to the amount of five thousand dollars, all of which she willed to her two little granddaughters, Jeanette and Nannie Burnett, aged fourteen and twelve years respectively, the children of her said son, except forty acres of land which she gave to Wm. H. Bush, and five hundred dollars which she gave to the Methodist church at Petersville. An attorney, in no way connected with this appeal, wrote the will, and at her request became a witness thereto; the other witness soon after attesting the will became a nonresident of the State, and has ever since been absent therefrom. On the death of the testatrix, appellant, the son, undertook to set aside this will, and did obtain a judgment of the Bartholomew Circuit Court annulling the same. The complaint charges that the judgment was obtained by fraud, and among other circumstances and details given, it charges that appellant first employed the attorney who wrote the will, and agreed to, and did, pay him $ 1,000.00 to aid and assist him in getting rid of the will.
Among the things which the complaint charges were done by said attorney are these: That he counselled and advised and assisted the appellant in preparing his case for trial; that he aided the appellant in securing compromises with the said Bush and the trustees of said church, who were the only adult legatees in said will, for the purpose of keeping them out of court; that after compromising with and silencing them, the said attorney appeared in court and falsely represented to the court that he produced and deposited the said will as the representatives of the said Bush and the other legatees who had been compromised with, thereby making them the proponents of the will; that the appellant, in order to present to the court the appearance of an adversary proceeding, suppressed from the court the knowledge that said attorney who wrote and attested the will was his attorney, employed other attorneys, and procured them to file his objections to the probate of the will; that the adult defendants before mentioned were thereafter proceeded against adversely, regularly summoned and defaulted, precisely as if no compromise had been made with them; that when the case was called for trial a guardian ad litem was appointed for the two infant defendants who were then only twelve and fourteen years of age respectively; that the appellant informed the guardian ad litem that the defendants whom he was appointed to represent were appellant's own children, that it was an agreed case; that all the parties were satisfied with the steps that were about to be taken, and that the guardian ad litem relied upon these representations, filed a formal answer and gave no further attention to the case; that he was not present in court at the trial; that none of the adult legatees were present; no witnesses were subpoenaed or examined to sustain the will; that the said attorney, the only resident attesting witness to the will, refused to testify to the sanity of the testatrix; and that by the false testimony of the appellant, his father-in-law and brother-in-law, the will was set aside; that the employment by appellant of the attorney who wrote the will and attested it, and the compromises, by which the adult beneficiaries were silenced, were all kept from the knowledge of the court.
The facts here stated make a case of fraud upon the court and upon the rights of the infant defendants. Loomer v. Wheelwright, 3 Sandf. Ch. *135; Kirby v. Kirby, 142 Ind. 419, 41 N.E. 809; Ward v. Town of Southfield, 102 N.Y. 287, 6 N.E. 660; Verplanck v. VanBuren, 76 N.Y. 247; Graver v. Faurot, 19 C. C. A. 680, 73 F. 1022; Beach Modern Equity, section 921; Freeman on Judgment, 491, 493 and 111a.
It is a case where appellant has paid or otherwise satisfied all persons interested in the probate of the will except his own children who are of tender years and are under his control. Bush and the trustees of the church have no further interest in the will or the probate thereof. The guardian ad litem for the children makes no defense for the reason alleged that appellant informed him that it was an agreed case, and that all parties were satisfied with the steps about to be taken to set aside said will. The attorney who wrote the will is one of the attesting witnesses, produces the will in open court for Bush and the other legatees have been paid one thousand dollars by appellant for merely nominal services in defeating the will. It is shown by the allegations of the complaint that appellant either directly or indirectly managed and controlled both sides of the case, and that the judge was imposed upon.
Under such circumstances, a final judgment, even in a criminal case, has been declared void. Halloran v. State, 80 Ind. 586; Watkins v. State, 68 Ind. 427; State v. Green, 16 Iowa 239; Wharton's Crim. Prac. and Pl., section 451; 1 Bishop Crim. Law, section 1010.
The demurrer to the complaint was properly overruled.
The next error urged is that the court erred in permitting appellees to file an amended complaint, over objection of appellant.
This action was commenced by Jeanette Milnes, who was a daughter of appellant and one of the legatees under said will, and her husband, Thomas C. Milnes. Afterwards, a rule was entered against appellant to answer the complaint. Before an answer was filed, Jeanette Milnes died intestate, and on suggestion of her death, her administrator was, by order of court substituted as a party plaintiff. Thereupon, by leave of court, an amended and substituted complaint was filed by said administrator and the...
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