Burnett v. Milnes

• Decision Date: 25 February 1897
• Citation: 46 N.E. 464,148 Ind. 230
• Parties: BURNETT v. MILNES et al.
• Court: Indiana Supreme Court

148 Ind. 230

46 N.E. 464

BURNETT

v.MILNES et al.¹

Supreme Court of Indiana.

Feb. 25, 1897.

Appeal from circuit court, Bartholomew county; T. C. Batchelor, Judge.

Action by Thomas C. Milnes and others against William Burnett. Judgment for plaintiffs, and defendant appeals. Affirmed.

M. D. Emig and Hacker & Remy, for appellant. Cooper & Cooper, Stansifer & Baker, and W. H. Everroad, for appellees.

MONKS, J.

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 Jeannette 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: Jeannette 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 $5,000, all of which she willed to her two little granddaughters, Jeannette and Nannie Burnett, aged 14 and 12, respectively, the children of her said son, except 40 acres of land, which she gave to William H. Bush, and $500, which she gave to the Methodist Church at Petersville. An attorney at the Columbus bar 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 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 counseled 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 representative 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 12 and 14 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, and that all the parties were satisfied with the steps that were about to be taken; 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, and no witnesses were subpœnaed 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 and 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; Beach, Mod. Eq. § 921; Verplanck v. Van Buren, 76 N. Y. 247; Freem. Judgm. 491, 493, 111a; Graver v. Faurot, 19 C. C. A. 680, 73 Fed. 1022. 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 alleged reason 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. He produced the will in open court for Bush and the other legatees, and has been paid $1,000 by appellant for merely nominal services in defeating the will. It is shown by the allegations of...