Crawfordsville Trust Company v. Ramsey
| Decision Date | 16 April 1912 |
| Docket Number | 21,846 |
| Citation | 98 N.E. 177,178 Ind. 258 |
| Parties | Crawfordsville Trust Company, Executor, v. Ramsey et al |
| Court | Indiana Supreme Court |
Rehearing Denied July 5, 1912.
From Boone Circuit Court; Willett H. Parr, Judge.
Action by Rosalind Ramsey and another against the Crawfordsville Trust Company, as executor of the will of Alexander F Ramsey, deceased, and others. From a judgment for plaintiffs the defendants appeal.
Affirmed.
Crane & McCabe and Finley P. Mount, for appellants.
M. M. Bachelder and A. J. Shelby, for appellees.
Alexander F. Ramsey, of Montgomery county, died testate in March, 1907, leaving as his only heirs, his childless widow, Ice H. Ramsey, and a son and daughter by a former wife. His daughter, Hepsey B. Yount, died intestate in November, 1907, leaving as her only heirs, a husband and three minor children. His son, Charles P. Ramsey, died intestate in October, 1908, leaving as his only heirs Evelyn Ramsey, his widow, and Rosalind Ramsey, a daughter, aged twelve years, who are appellees herein.
The testator died the owner of real and personal property, which, in the complaint, is alleged to have been of the value of $ 400,000. By his will, executed in February, 1907, and probated in the Montgomery Circuit Court shortly after his death, he bequeathed to his son Charles the sum of $ 3,000, and to the Crawfordsville Trust Company, as trustee, the sum of $ 1,500, which was directed to be used in educating said Rosalind. A large portion of the estate was devised and bequeathed to the Board of Commissioners of the County of Montgomery and the Crawfordsville Trust Company, jointly, in trust, for the benefit of the poor people of Crawfordsville. The will contains provisions for the benefit of testator's widow, and numerous bequests to various persons, and makes the daughter, Hepsey B. Yount, the residuary beneficiary. Appellant Crawfordsville Trust Company was named as executor of the will, and accepted the trust.
In November, 1908, after the death of Charles P. Ramsey, this action was commenced in the Montgomery Circuit Court by his widow and daughter, appellees, to contest the will of Alexander F. Ramsey. Afterwards, the venue of the cause was changed to the Boone Circuit Court.
The complaint alleges that in March, 1907, an instrument, purporting to be the last will of Alexander F. Ramsey, was admitted to probate by the Montgomery Circuit Court; that the same is invalid because said Ramsey, at the time of the execution thereof, was a person of unsound mind, and because the same was unduly executed.
It is further alleged that shortly after the probate of the will, the executor therein named paid to said Charles P. Ramsey the sum of $ 3,000, which was the amount of the legacy bequeathed to him by the terms of the will, and took from him a receipt for the legacy; that at said time Charles P. Ramsey was a person of unsound mind, and that the acceptance of the $ 3,000 and the execution of the receipt therefor were procured by the executor by means of certain false and fraudulent misrepresentations, which are set out in detail.
It is also alleged that before filing this complaint to contest, appellees tendered to the executor the sum of $ 3,000, and demanded the legacy receipt, which tender and demand the executor refused, and on the filing of the complaint appellees paid to the clerk the sum of $ 3,000, for the use and benefit of defendant Crawfordsville Trust Company, as executor, "in lieu of said money so paid to said Charles Ramsey, and have come into court with said money and tender it in court for the use and benefit of said executor of said estate of said Alexander F. Ramsey."
Appellees pray that the pretended will be declared invalid, that the probate thereof be set aside, and that the election of Charles P. Ramsey to take under the will be rescinded and held for naught.
All the living devisees and legatees named in the will, and the heirs of those who had died, were made parties defendant, as were also the executor and trustees therein named. A demurrer to the complaint, for insufficient facts, filed by the executor, was overruled, whereupon it filed an answer in two paragraphs, the first of which was a general denial. In the second paragraph it is alleged that immediately after the probate of the will, testator's son, Charles P. Ramsey, demanded of the executor the payment of the $ 3,000 legacy, and thereupon the same was paid to him, and he executed to the executor a receipt therefor, in which it is recited that the will of Alexander F. Ramsey has been read by the undersigned, and that the $ 3,000 is received in full payment of the legacy. The answer further denies the allegations in the complaint relating to fraud of the executor and to the unsoundness of mind of the legatee, and that by reason of the above facts plaintiffs are estopped from demanding any relief. Answers of general denial were filed by the other defendants.
The executor filed a motion to submit the issues to the court for trial without the intervention of a jury, on the ground that the suit was of equitable cognizance. This motion was overruled. Thereupon the executor filed a motion to submit to the court, without the intervention of a jury, the issues in the cause touching the rescission of the election of Charles P. Ramsey to accept the legacy bequeathed him, and touching the rescission of the release by him executed. This motion was also overruled. The cause was tried by a jury, resulting in a verdict and judgment for appellees. The executor filed a separate motion for a new trial, which was overruled, as was also a like motion by the other defendants. From a judgment adjudging the will invalid, and revoking the probate thereof, and ordering the clerk to pay to the Crawfordsville Trust Company the $ 3,000 paid by plaintiffs for its benefit, this appeal is prosecuted.
Appellants insist that the lower court erred in overruling the demurrer to the complaint, because the right of Charles P. Ramsey to contest the will did not, on his death, survive to his heirs; that a will contest is not a civil action, but a special statutory proceeding, and is not governed by our statute relating to the survival of actions; that one not interested in the decedent's estate when the will was admitted to probate can never acquire the right to institute a proceeding to revoke the probate thereof.
The question raised here has never been decided by this court, and it requires a consideration of our statute relating to wills, and the probate and contest thereof, and of our statute relating to the survival of actions, and, incidentally, of some common-law rules.
The act prescribing who may make a will, and the effect thereof, and regulating the admission of wills to probate, and the contest thereof, was approved May 31, 1852, and is, with certain amendments, still in effect. 2 R. S. 1852 p. 308, § 3112 et seq. Burns 1908, § 2556 R. S. 1881. By its terms, all persons, except infants and persons of unsound mind, may execute a valid will. § 3112 Burns 1908, § 2556 R. S. 1881.
Section 3154 Burns 1908, § 2596 R. S. 1881, provides that "any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the circuit court * * * his allegation, in writing, * * * setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress or was obtained by fraud, or any other valid objection to its validity or the probate thereof." It has been held, however, that the broad language concerning the right of "any person" to contest a will is limited by § 3 of our code of civil procedure, approved June 18, 1852, which provides: "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided" (2 R. S. 1852 p. 27, § 251 Burns 1908, § 251 R. S. 1881); and consequently only those having an interest in the subject-matter of the will may contest its validity. Campbell v. Fichter (1907), 168 Ind. 645, 81 N.E. 661, 11 Ann. Cas. 1089; Thompson v. Turner (1910), 173 Ind. 593, 89 N.E. 314, and cases cited on page 596, 89 N.E. 314.
Our civil code (§§ 282-284 Burns 1908, §§ 281-283 R. S. 1881, 2 R. S. 1852 p. 204) contains the following provisions relating to the survival of actions: § 282. "In all cases where actions survive, they may be commenced by or against the representatives of the deceased to whom the interest in the subject-matter of the action has passed." § 283. "A cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment, and malicious prosecution." § 284. "All other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions for promises to marry." Does the right to contest a will constitute a "cause of action", within the meaning of the foregoing provisions of our code? If so, it survives.
In Baker v. State, ex rel. (1887), 109 Ind. 47, 9 N.E. 711, this court, on page 61, approved the definition of "cause of action", included within the following quotation: "
In American Surety Co. v. State, ex rel. (1910), 46 Ind.App. 126,...
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