Clearspring Township of Lagrange County v. Blough
Decision Date | 25 May 1909 |
Docket Number | 21,184 |
Citation | 88 N.E. 511,173 Ind. 15 |
Parties | Clearspring Township of Lagrange County et al. v. Blough et al |
Court | Indiana Supreme Court |
Rehearing Denied October 14, 1909, Reported at: 173 Ind. 15 at 30.
From Lagrange Circuit Court; James S. Dodge, Judge.
Proceeding by Clearspring Township of Lagrange County to probate a will Noah Blough and another resisting. From the judgment rendered, plaintiff and another appeal.
Reversed.
Miller Drake & Hubbell, J. F. Dunten, Ballou & Green and Merritt & Duff, for appellants.
Thomas R. Marshall, John W. Hanan and Merrill Moores, for appellees.
On September 17, 1907, appellant township presented in the Lagrange Circuit Court an instrument in writing, purporting to be the last will and testament of Valentine Blough, deceased, and moved that it be admitted to probate. Appellees, sons of the decedent, appeared at the same time and objected to such probate, and time was given to them within which to file their objections. On September 20 they filed written objections against probate, ten in number, of which the fifth, eighth and tenth went out on demurrer, those remaining being: "(9) That the terms and conditions thereof are not enforceable, as shown by the terms thereof, either at law or in equity."
Said objectors named as parties, and as all the parties benefited, Clearspring township of Lagrange county, Amanda Blough, the widow of said Valentine Blough, and John Blough, as executor of said pretended last will and testament.
The instrument offered for probate, and referred to in the objections which it accompanied, contained a general declaration as follows:
"I, Valentine Blough, of Clearspring township, Lagrange county, Indiana, desiring to provide for the support and maintenance of my two sons during their lives, and that certain persons living in said Clearspring township, after my death, should receive the final benefits of my estate, do make and publish this, my last will and testament, hereby revoking all former wills by me made."
Item one devises to appellee Noah Blough 220 acres of specifically described real estate for life, he to pay the taxes, keep the land fenced, and cut or remove no timber except such as is necessary for the use and benefit of the farm.
Item two devises 260 acres of specifically described real estate to appellee Henry Blough, on the same terms and conditions as in case of the devise to Noah Blough.
Items three, four and five are as follows:
Separate motions by Clearspring township, Amanda Blough, and John Blough, executor, to strike out all the objections other than the first, were overruled, and separate exceptions reserved, and separate demurrers by each of them to each of the objections, other than the first, were sustained as to the fifth, eighth and tenth, and overruled as to the others, and exceptions reserved.
A stipulation was then entered into between the parties, by which it was agreed that the decedent was buried in a public cemetery in Lagrange county; that prior to his death he had erected a monument to his memory in said public cemetery, and that the question of the soundness or unsoundness of mind of the decedent should be waived, and held in abeyance, until the questions presented by the other objections, from the face of the instrument, should be determined.
Appellants then offered competent evidence of the execution of the instrument as the last will and testament of the decedent, which was excluded, and the court refused to hear any evidence, and held that, from the face of the instrument offered, it is void; that it is not such an instrument (said Valentine Blough not being buried upon the farm therein described), as can be enforced at law, or should be enforced in equity, and that the further stipulations and conditions of the will are void in law and in equity. Judgment was rendered refusing probate of the will, and against appellants for costs.
Separate motions for a new trial were filed, and overruled, and exceptions reserved, and an appeal was prayed, and bond filed and approved.
Errors are assigned separately by the appellants, as to the ruling of the court on the motions to strike out the objections, other than the first, in overruling the demurrers to the second, third, fourth, sixth, seventh and ninth objections, in overruling their motions for a new trial, in adjudging the will invalid on its face, and in refusing to hear evidence of its execution.
Appellees here move to dismiss the appeal as to Amanda Blough, on the ground that she has no interest in the controversy. Appellees made her a party, alleging that she had an interest, and secured a judgment against her for costs, and cannot now be heard to say that she is not a party in interest.
On the part of appellants it is claimed that in proceedings to probate a will where there is resistance to probate, the statutory grounds (§ 3154 ...
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Clearspring Tp. of La Grange Cnty. v. Blough
... ... 21,184.Supreme Court of Indiana.May 25, 1909 ... Appeal from Circuit Court, La Grange County; James S. Dodge, Judge.Proceedings by the Clearspring Township of La Grange County for the probate ... ...