Cameron's Estate, In re, 1067
Decision Date | 16 May 1968 |
Docket Number | No. 2,No. 1067,1067,2 |
Citation | 236 N.E.2d 626,142 Ind.App. 645 |
Parties | In the Matter of the ESTATE of Alice H. CAMERON, Deceased. George S. COGGESHALL and Margaret E. Coggeshall, Appellants, v. Albert J. KUSTER, Executor of the Estate of Alice H. Cameron, Deceased, Ruth Van Auken, Nancy Carlson, Howard LaFollette, Maude Wolfe, Abe Price, Edith Miller, Wilma Kuster, and Ann Hunt, Appellees. A 78 |
Court | Indiana Appellate Court |
Gates, Gates & McNagny, Columbia City, for appellants.
Albert J. Kuster, Ligonier, Philip C. Barker, Goshen, F. Jay Nimtz, South Bend, R. Stan Emerick, Kendallville, for appellees.
This is an appeal from a nunc pro tunc order admitting an alleged codicil to probate, as of a date more than two years prior to the entry of the order.
The original order of probate was dated May 17, 1965, and on March 23, 1967, the executor filed a motion to correct record, to which motion appellant George S. Coggeshall filed objections. On July 19, 1967, the Noble Circuit Court granted the executor's motion to correct the record.
The trial court's order book entry, inter alia, stated;
'(3) That such written instrument purporting to be a codicil to such decedent's Last Will and Testament was duly executed in all respects according to law, has been duly proven is a codicil to the Last Will and Testament of decedent herein and is entitled to be admitted to probate as such in such County.'
The purported codicil, as found in the transcript, and typed out by us as best we can decipher, it, is as follows:
The rest of the money to go to George Coggeshall." 2
2. A copy of the codicil is appended.
It is obvious that the above 'codicil' was neither signed by the testatrix nor attested by two witnesses. Proofs of codicil, other than by subscribing witnesses, were filed by three persons. Each proof was limited to an opinion that the 'codicil' was in the handwriting of the decedent, and two of them stated that the decedent was competent and of sound mind. Two of these witnesses were beneficiaries under the 'codicil'.
Appellant attacks the jurisdiction of the court below in admitting to probate a document which is non-testamentary on its face.
Appellees contend that appellants cannot collaterally attack the probate of the 'codicil' since they have failed to file objections as provided in Burns' Stat.Ann. § 7--117, (1953 Replacement).
Under Burns' Stat.Ann. § 7--113, (1953 Replacement), it is provided that:
'When a will is offered for probate, if the court or the judge * * * finds that the decedent is dead and that the will was executed in all respects according to law, it shall be admitted to probate * * *.' (Emphasis supplied)
The above statute certainly was not complied with in the case at bar, for it is obvious from the face...
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