Deig v. Morehead
| Decision Date | 20 April 1887 |
| Docket Number | 11,758 |
| Citation | 11 N.E. 458,110 Ind. 451 |
| Parties | Deig, Executor, et al. v. Morehead |
| Court | Indiana Supreme Court |
From the Posey Circuit Court.
The judgment is affirmed, with costs.
A. P Hovey and G. V. Menzies, for appellants.
W. P Edson and E. M. Spencer, for appellee.
This was a suit by appellee, Wilhelmina Morehead, against the appellants, to contest the validity of a certain paper writing, purporting to have been executed on the 11th day of March, 1883, by one George Frank Maurer, as his last will and testament.
Appellee's complaint was filed on the 9th day of May, 1883, and contained two paragraphs. In the first paragraph, appellee alleged that, on the 11th day of March, 1883, George F Maurer died in Gibson county, Indiana, leaving as his only heirs at law the appellee, Wilhelmina, and appellants William Charles Maurer and Andrew John Maurer, who were his only children; that said George F. Maurer, at the time of his death, was seized and possessed of property, real and personal, situate in Posey county this State, of the value of ten thousand dollars or more; that said George F. Maurer died intestate, leaving, however, a pretended will, a copy of which was therewith filed, purporting to devise all of his estate, real and personal, to the appellee and the appellants, and nominating appellant, John B. Deig, executor of such pretended will, and appointing him guardian of the appellants William Charles and Andrew John Maurer; that at the time of the making of such supposed will by said George F. Maurer, he, the said George F. Maurer, was not of sound mind; and that the said George F. Maurer never executed such pretended will, nor signed his name thereto, and, therefore, such pretended will was not duly executed by him. Wherefore, etc.
The second paragraph of appellee's complaint alleges substantially the same general facts as the first paragraph, except that it is not charged, in such second paragraph, that the said George F. Maurer, at the time of his making such pretended will, was of unsound mind, and except, also, that the second paragraph charges more specifically than the first paragraph of complaint, the undue execution of such pretended will, by alleging that the same was not signed by the said George F. Maurer, nor by any other person at his request, or with his knowledge or consent, in the presence of two witnesses, nor was his signature thereto ever attested by two witnesses, and, therefore, appellee averred that such pretended will of the said George F. Maurer was never executed by him, as his will. Wherefore, etc.
Appellants jointly answered by a general denial of the complaint. The issues joined were tried by a jury, and a verdict was returned for the appellee; and over appellants' motion for a new trial, the court adjudged and decreed that the probate of the will of George F. Maurer, deceased, should be set aside, and declared and decreed such will to be null and void, and further adjudged that appellee should recover of the appellants her costs and charges in this behalf expended.
Errors are assigned here by the appellants, which call in question the rulings and action of the court below, (1) in submitting the issues in this case to a jury for trial, over appellants' objections, (2) in directing the panel of the jury to be filled from the bystanders, instead of filling vacancies from the regular panel, as selected by the jury commissioners, (3) in directing the sheriff of the county to fill vacancies in the regular panel from the bystanders, instead of from names selected by the jury commissioners, and in permitting those persons, selected by the sheriff from the bystanders, to be sworn and empanelled as a part of the jury to try the issues in this cause, over appellants' objections, and (4) in overruling appellants' motion for a new trial.
We will consider these alleged errors, and decide the questions arising thereunder, in the same order in which appellants' learned counsel have presented and discussed them in their able and exhaustive brief of this cause.
1. Appellants' counsel earnestly insist that the circuit court erred in submitting the issues in this case to a jury for trial, over their objections. It is shown by a bill of exceptions, properly in the record, that when the cause was at issue and called for trial, appellee demanded a jury to try the issues joined; "whereupon the defendant John B. Deig objected to the trial of this cause by a jury at the time, and insisted upon the trial of said issues by the court, and thereupon the court overruled the objection of defendant, and caused a jury to be empanelled to try the issues herein." This is all that is shown by the bill of exceptions, in relation to the action of the court in overruling appellants' objection to the trial of the cause by a jury. Strictly speaking, therefore, it might well be said that appellants can not be heard to complain here of the overruling of their objection to the trial of the cause by a jury, because it is not shown by the record that they excepted to such ruling. Waiving this point, however, we are of opinion that the action of the court below in submitting the issues in this cause, upon appellee's demand, to a jury for trial, was not erroneous. Of course, appellants' objection to the trial of the cause by a jury, and their demand for a trial by the court of the issues herein, were based upon the theory that actions to contest the validity of wills were "causes that, prior to the 18th day of June, 1852, were of exclusive equitable jurisdiction," and that, therefore, under the provisions of section 409, R. S. 1881, "issues of fact," in such actions, could only be "tried by the court." This theory is erroneous.
For many years past, it has been uniformly held by this court, that actions to contest the validity of wills were statutory actions. Thus, in Harris v. Harris, 61 Ind. 117, the court said: "It is clear, we think, that actions to contest the validity, and to resist or set aside the probate of an alleged last will, are purely statutory; that is, they can only be brought, and successfully maintained in the court, within the time and upon the grounds prescribed in and by the statute which authorizes such actions."
In the recent case of Lamb v. Lamb, 105 Ind. 456, 5 N.E. 171, the precise question we are now considering, namely, the right of a party to a trial by jury in actions to contest the validity of wills, came before this court for consideration and decision, and the right to a trial by jury in such actions was fully sustained by the court. It was there said:
What we have quoted from our opinion, in the case last cited, affords a complete answer to the arguments and authorities of appellants' learned counsel in support of their claim, in the case under consideration. We are clearly of the opinion that the court below committed no error in submitting the issues of fact in this cause to a jury for trial, over the objections of appellants.
2. The next error complained of in argument, by appellants' counsel, is the action of the court in directing the panel of the jury to be filled from the bystanders, instead of filling vacancies therein from the regular panel, as selected by the jury commissioners. It is shown by a bill of exceptions in the record of this cause, that "in empanelling the jury herein, three of the regular panel being legally excused, the court permitted and directed the sheriff to select three jurors from the bystanders, without selecting said jurors from the jurors selected by the jury commissioners of Posey county for the year 1884, and not specially drawn for this term, to which the defendant at the time objected and excepted."
There is no available error, we think, in the action of the court of which appellants' counsel complain. In section 1387 R. S. 1881, it is provided that within a period not more than one week preceding the commencement of any term of the circuit court of any county, like Posey, having no criminal court, the jury commissioners of the county shall draw from the box, provided for that purpose, "six names of competent persons, who shall be summoned as the grand jury for such ensuing term;" and that within the same period preceding any term of the circuit court of any county, like Posey, having no criminal or superior court, the jury commissioners of the county shall draw from such box twelve names of persons, as petit jurors for such court, at such term. These jurors are thus drawn by the jury commissioners, pursuant to the requirements of the statute, and without any order of court, and they constitute the regular panels, grand and petit, for the term. Whether or not...
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