Evansville Ice & Cold-Storage Co. v. Winsor

• Decision Date: 16 November 1897
• Citation: 48 N.E. 592,148 Ind. 682
• Parties: EVANSVILLE ICE & COLD-STORAGE CO. et al. v. WINSOR.
• Court: Indiana Supreme Court

148 Ind. 682

48 N.E. 592

EVANSVILLE ICE & COLD-STORAGE CO. et al.

v.WINSOR.

Supreme Court of Indiana.

Nov. 16, 1897.

Appeal from circuit court, Vanderburg county; R. D. Richardson, Judge.

Action by Constance Winsor, by next friend, against the Evansville Ice & Cold-Storage Company and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.Gilchrist & De Bruler, for appellants. Azro Dyer and Louis Ahlering, for appellee.

MONKS, J.

The facts appearing from the amended complaint, so far as necessary to the determination of the questions presented, are as follows: On the 18th day of September, 1886, Annie Stockwell Winsor, who was a married woman, residing with her husband, William L. Winsor, in the state of New York, was the owner of real estate in Evansville, Ind., and on said day made her last will, naming her husband as her sole devisee, and making no provision for a child afterwards born. On the 19th day of September, 1886, the next day after the will was executed, Mrs. Winsor, the testatrix, gave birth to a daughter, Constance A. Winsor, the appellee in this case. Said testatrix died on July 30, 1889, and left surviving her husband, William L. Winsor, and her child, the appellee. At the time of her death, she was the owner of said real estate, in Evansville, Ind. On the 3d day of September, 1889, said will was admitted to probate by the proper court in New York. On the 24th day of September, 1889, a copy of said will and the probate thereof, duly certified under the seal of the surrogate, and duly certified and attested as authentic, as required by the laws of this state and of the United States, and as required by sections 2761 to 2763, Burns' Rev. St. 1894 (sections 2591 to 2593, Rev. St. 1881), was presented to the Vanderburg circuit court; and thereupon the proper order was made by said court, and it was entered, as a part of said order, that said will has the same force and effect as if originally probated in said county. On said day, in accordance with said order, said copy of the will and the probate thereof was duly filed and recorded by the clerk of said court. After said will was filed and recorded in the Vanderburg circuit court, said William L. Winsor, from time to time, sold and conveyed parts of said real estate in Evansville, Ind., to the Evansville Ice & Cold-Storage Company and other appellants, and they are in the possession of the real estate so conveyed. William L. Winsor died, testate, in the state of New York, on the 8th day of September, 1894; and on the 13th day of March, 1895, the appellant Thomas E. Garvin, Jr., was by the Vanderburg circuit court duly appointed administrator with the will annexed of the estate of William L. Winsor, deceased, who duly qualified as such administrator. It is alleged in the amended complaint that William M. Bell, by his attorney, Edward Law, presented said copy of the will of Annie Stockwell Winsor, and the probate thereof, so certified and attested as required by law, to the Vanderburg circuit court, and that, at the time that said copy was presented to said court and said order was made by said court, neither said Bell nor Law, his attorney, was interested in said will; and it is further alleged in the amended complaint that said will is invalid and revoked, for the reason that, after said will was executed, said Annie Stockwell Winsor had born to her legitimate issue, to wit, appellee, who survived said testatrix, and is now living, and no provision was made for appellee in said will, nor was she mentioned therein. Prayer: That the said will and the probate thereof be set aside, and that the order of the Vanderburg circuit court entered September 24, 1889, admitting a copy of said instrument to be filed and recorded in said court, and the record thereof by the clerk, be set aside and declared null and void, etc. This action was commenced September 28, 1895. The amended complaint was verified as required by section 2766, Burns' Rev. St. 1894 (section 2596, Rev. St. 1881), which provides for contesting wills, etc. Appellants filed an answer, to which appellee's demurrer for want of facts was sustained; and, appellants refusing to plead further, judgment was rendered in favor of appellee.

As appears from the amended complaint, the will of Annie Stockwell Winsor, deceased, was filed and recorded in the Vanderburg circuit court under the provisions of sections 2761 to 2763, Rev. St. 1894 (sections 2591 to 2593, Rev. St. 1881), the last of which sections provides that such court shall order the same to be filed and recorded by the clerk, and thereupon such will shall have the same effect as if it had been originally admitted to probate and recorded in this state. It is settled law in this state that an action to set aside a will and its probate, on the ground that the will has been revoked either expressly or impliedly, is an application to contest the will, within the meaning of our statutes, providing for contesting wills. Bartlett v. Manor (last term) 45 N. E. 1060;Burns v. Travis, 117 Ind. 44, 18 N. E. 45. In this state, actions to contest the validity, and to resist or set aside the probate, of a last will, are purely statutory. As this court said, in Harris v. Harris, 61 Ind. 117, p. 123: “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.” The same doctrine is declared in Bartlett v. Manor, supra. Section 2766, Burns' Rev. St. 1894 (section 2596, Rev. St. 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 proper court “his allegations in writing, verified by his affidavit, 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 is provided by section 2771, Burns' Rev. St. 1894 (section 2601, Rev. St. 1881), that “infants and persons absent from the state or of unsound mind shall have two years after their disabilities are removed to contest the validity or due execution of such will.” The said sections and the act of which they form a part were enacted in 1852. In 1859 the general assembly passed section 2770, Burns' Rev. St. 1894 (section 2600, Rev. St. 1881), which provides that when a foreign will has been “admitted to probate, or which * * * may be offered for record and filing in any county of this state, any person interested in the estate of the testator may contest such will or testament within the time, in the manner, and for any or all the causes prescribed by the laws of Indiana in cases of the contest of domestic wills: provided, that nothing in this section shall be so construed as to allow the contest of any foreign will which may have been probated, or filed and recorded, in any county of this state, more than three years before the commencement of such contest.”

It is first contended by appellee that said section 2770 (2600) has no application to a case like the present, when a copy of the foreign will and probate is filed and recorded in this state; citing Harris v. Harris, supra. If this contention of appellee is correct, then, upon the authority of that case, this action brought by her must fail, for want of jurisdiction in the court below, because there is no statute authorizing it. But the case of Harris v. Harris, supra, cited by appellee, is not like this. In that case the estate in the county where the copy of the foreign will and probate was produced for filing and record was personal property, while the property upon which the foreign will operates in this case is real estate. The rule as to personal property is that the law of the place where the testator is domiciled at the time of his death governs as to the capacity of the testator to make a will, and as to the forms to be observed in its execution and revocation, and as to its validity in every respect. 1 Jarm. Wills, 1-4, and notes; Schouler, Wills, § 491; 3 Am. & Eng. Enc. Law, 630, 632, 634. Such questions as to bequests of personal property being governed by the law of the domicile of the testator, they are adjudicated when the will is admitted to probate in such jurisdiction, and the same is conclusive. Ryno's Ex'r v. Ryno's Adm'r, 27 N. J. Eq. 522, 524; Strong v. Perkins, 3 N. H. 517;Ives v. Salisbury, 56 Vt. 565; Lovett's Ex'rs v. Mathews, 24 Pa. St. 330; London v. Railroad Co., 88 N. C. 584; Wilson v. Gaston, 92 Pa. St. 207; Vermont Baptist State Convention v. Ladd's Estate, 59 Vt. 5, 9 Atl. 1;Jourden v. Meier, 31 Mo. 40, 43; Douglas v. Cooper, 3 Mylne & K. 378, 381; Van Fleet, Coll. Attack, § 236; Id. pp. 224, 225, § 585. As to such property, the probate of the will in the state where the testator was domiciled at the time of his death is, under the constitution of the United States, entitled to full faith and credit in every other state, and it was so held...