Cope v. Lynch, 19382

• Decision Date: 21 September 1961
• Docket Number: No. 1,No. 19382,19382,1
• Citation: 132 Ind.App. 673,176 N.E.2d 897
• Parties: Carl COPE, Appellant, v. Daisy LYNCH, June Sasser, Wendell Cope, Ray Cope, Herschel Cope, Montana Bowman, Gary W. Cope, minor by his Guardian Ad Litem Dorothy Testani, and Joseph Lawrence, Appellees
• Court: Indiana Appellate Court

Page 897

176 N.E.2d 897

132 Ind.App. 673

Carl COPE, Appellant, v. Daisy LYNCH, June Sasser, Wendell Cope, Ray Cope, Herschel Cope, Montana Bowman, Gary W. Cope, minor by his Guardian Ad Litem Dorothy Testani, and Joseph Lawrence, Appellees.

No. 19382.

Appellate Court of Indiana, Division No. 1.

Sept. 21, 1961.

Rehearing Denied Nov. 6, 1961.

Richard M. Givan, Indianapolis, Lealand West, Scottsburg, for appellant.

Cooper, Cooper, Cooper & Cox, Madison, for appellees.

MYERS, Judge.

This is an action brought by appellees as plaintiffs below against appellant, Carl Cope, and one Joseph Lawrence as defendants, to establish and probate a purported lost will and codicil of William A. Cope, deceased; for the revocation of letters of administration previously issued to appellant, Carl Cope; and for the granting of letters testamentary to Chester Lynch, husband of Daisy Lynch, one of the appellees herein, named as executor in the purported lost will. The complaint alleged that an exact copy of the will and codicil had been found; that the will and codicil sought to be probated had been lost or were improperly destroyed or suppressed in a manner and time unknown to appellees during the lifetime of the testator, without his consent or knowledge and without the consent or knowledge of appellees.

The issues were formed by an answer filed by appellant, Carl Cope, pursuant to the provisions of Supreme Court Rule 1-3, wherein he denied specifically that the purported will and codicil were lost, improperly destroyed or suppressed.

A trial of the issues involved was had before the court without the intervention of a jury. After hearing evidence and taking the matter under advisement, judgment was entered for appellees on their complaint, the court finding that the will and codicil were lost or destroyed during the lifetime of the testator, but not at his instance or request. There was a specific finding that the testator did not intend to revoke his will and codicil. The copy of the will and codicil was ordered admitted to probate, and appellant, Carl Cope, was ordered to file a final accounting of his activities and to take no further actions in the estate except to file his final report and resignation. Chester Lynch was ordered appointed as executor upon giving proper bond.

Appellant filed his motion for new trial, assigning as grounds therein that the decision of the court was not sustained by sufficient evidence and was contrary to law. A third assignment of error was later waived by appellant. The motion was overruled and this appeal followed. Appellant assigns as error the overruling of the motion for new trial.

The evidence presented at the trial consisted of a stipulation, certain pre-trial examinations and the testimony of witnesses. It was stipulated that on June 21, 1956, William A. Cope duly executed his last will and testament at the office of his attorney, Lealand West of Scottsburg, Indiana; that the will offered in evidence was a carbon copy of an original which was not found following the death of the testator; that a codicil had been duly executed later in the year 1956; that Carl Cope, appellant herein, was the only surviving heir of the testator, being his son; that appellees, Daisy Lynch, June Sasser, Wendell Cope, Ray Cope, Herschel Cope, and Montana Bowman, were nephews and nieces; that appellee, Gary W. Cope, was a grandnephew; and that appellee, Joseph Lawrence, was a stepson.

From the pre-trial examinations and the testimony of witnesses, the evidence most favorable to appellees is as follows: William A. Cope, the testator, at the time of the events set forth herein, was a man about 77 years of age. He was married in 1905 or thereabouts. His wife had a son by a previous marriage, by the name of Joseph Lawrence, who grew up and lived with them. The Copes owned a farm near Scottsburg, Indiana, consisting of about 93 acres, on which was located their home. In 1954 Mrs. Cope died. After her death, William rented the farm and proceeded to visit the various members of his family at different times during the following years, usually returning to his home during the winters. Carl Cope, appellant herein, was the only surviving son which he had by his deceased wife.

For about four months of the summer and early fall of 1956, William visited with his niece, Daisy Lynch, and her husband, Chester, at their home in Deputy, Indiana. It was while he was staying there that he went to Scottsburg and drew up and executed his will on June 21st. Upon leaving the attorney's office that day, he requested Daisy to read it and told her to put it away for safekeeping. This she did by taking it to her home and locking it in a secretary desk drawer. At the time, the will had been placed in a business envelope belonging to Lealand West, the attorney. His name was printed on the outside in the left-hand corner. When placed in the drawer, the envelope was not sealed.

By the terms of the will, Carl and Joseph Lawrence were to receive a portion of William's real estate, share and share alike. The residual estate was divided among the appellees herein, of which Carl and Joseph each were to receive a on-ninth share.

Some time later in the fall of 1956, the exact date being unknown, William drew a codicil to the will in his own handwriting. It was signed by him and witnessed by neighbors of the Lynches in Deputy. This was given to Daisy, who placed it in the envelope containing the will and again locked it in the drawer. The codicial altered the provisions of the will to the extent that all Williams's personal property was to be divided between Joseph and Carl, share and share alike.

Subsequently, William requested that the will and codicil be put in a safety deposit box. Daisy rented such a box at a bank in Madison, Indiana, and placed it therein. At the time this was done, William sealed the envelope and wrote on it, in the corner opposite Lealand West's name, the words 'Will and Codicil.'

Shortly thereafter, William went back to Scottsburg with his son, Carl. In January, 1957, he became sick and was taken to Richmond, Kentucky, where his niece, June Sasser, her husband, James, and their two children lived. William's sister, being June's mother, also lived there. After a week or so there, he was strickent with a heart attack or 'brain spasm,' which necessitated hospitalization. He spent about ten days in the hospital and returned to the Sasser home in a weakened condition. He was bedridden most of the time, and apparently was suffering from heart trouble, hardening of the arteries, loss of appetite, and swelling of the legs. He was able to sit up in a 'secretary' chair, with wheels on it, which members of the family pushed, so that he could get around in the house. He could get in and out of bed in order to go to a commode which was in his bedroom.

Some time in January, Daisy received a letter from June Sasser stating that William wanted his will and codicil and requesting that Daisy bring them to him. Daisy delivered the envelope containing them to him in Richmond on February 3, 1957, at which time he said that he wanted to make 'a little change' in the will, but did not say what. The envelope was sealed when delivered to William. At the time, a larger envelope was obtained by James Sasser, who placed the sealed envelope therein together with a paper pertaining to insurance. James then wrote on the outside of the larger envelope: 'Uncle Will's Junk.' This larger envelope was not sealed. William placed the envelope in a satchel he owned, which contained other papers, canceled checks, binoculars, shotgun shells, and other odds and ends. The satchel was then placed on the floor of a closet in William's bedroom.

This room was about 10 x 12 feet in size. A three-quarter bed was located in one corner, which was occupied by William. Next to it was a bedside table. The closet was in the wall behind the head of the bed, and the door to it opened outward on the other side of the bedside table. The doorknob was on the side nearest the bed. The depth of the closet was about two feet. When William was in bed, as he was most of the time, he could not reach the satchel where it was placed in the closet. At different times, William would have members of the family hand him the satchel as he was lying in bed and he would go through his possessions. Then the satchel would be placed back in the closet. There was testimony, including that of Carl, to the effect that William was never left alone; that some one was with him or near him at all times. He was able to get up and down from bed himself, but usually was helped by others. So far as anyone knew, William never got the satchel from the closet by himself. June stated that he could not have done so because he was physically unable.

Carl came to visit the Sassers around the middle of February, 1957, and stayed about a week. He later returned on the 2nd of March and stayed there until after his father died on March 15th. When there, he occupied a bedroom in the basement. During his stay, Carl questioned members of the family about his father's will. At one time, he indicated to James Sasser that he thought he had been left out of the will...