Faylor v. Fehler

• Decision Date: 05 February 1914
• Docket Number: No. 22,358.,22,358.
• Citation: 181 Ind. 441,104 N.E. 22
• Parties: FAYLOR v. FEHLER et al.
• Court: Indiana Supreme Court

181 Ind. 441

104 N.E. 22

FAYLOR

v.FEHLER et al.

No. 22,358.

Supreme Court of Indiana.

Feb. 5, 1914.

Appeal from Circuit Court, Wells County; Myers, Judge.

Application by Roy Fehler and others for the probate of a will, to which Thomas Faylor filed objections. From a judgment striking the objections and admitting the will to probate, the objector appeals. Reversed and remanded.Mock & Mock, of Bluffton, for appellant. Leonard, Rose & Zollars, of Fort Wayne, for appellees.

MYERS, J.

Appellee Roy Fehler, a legatee and devisee under the will of Catherine Faylor, deceased, filed an application for the probate of the will of the decedent, to the probate of which appellant, having obtained leave over appellee's objections, filed objections, which on motion were stricken out, exception reserved, and the evidence heard, and the will admitted to probate. The other appellees are the executor and legatees and devisees under the will, and personal or legal representatives of the legatees and devisees, and those who but for the will would be heirs, of which appellant was one. In appellant's application for leave to file objections to the probate of the will, in addition to the facts set out in the objections proper, he alleges that on July 8, 1902, Catherine Faylor died, leaving numerous persons, himself included, her sole heirs at law, naming them; that on July 10, 1902, in vacation, one of said heirs filed in the office of the clerk of the Wells circuit court his written objections to the probate of the last will of said Catherine Faylor; that afterward on the same day one David Studebaker (named in the will as executor) presented the will for probate to said clerk, and owing to such objections, probate was denied, and the cause was continued until the next or September term of said court; that on September 4, 1902, the objector appellant, and the other alleged heirs, filed in the Wells circuit court a complaint verified by one of them, in resistance of probate of said will, on the ground that the testator was of unsound mind at the time of its pretended execution, and that it was unduly executed, being cause 7,720 in that court, and that such action is still pending in that court, and that appellant did not know until his attorneys were called to the courtroom February 19, 1913, that Roy Fehler was mentioned in said pretended will as a beneficiary, and asked leave to file his objections and complaint against probate. This petition was filed February 19, 1913, on which day, but previously, appellee Roy Fehler, a legatee and devisee under the will, filed in the Wells circuit court a motion alleging that the will of the decedent was offered for probate in that court, July 10, 1902, and moved the court in his own behalf that the will be admitted to probate. Appellant, over appellee's objections, had leave generally to file his objections, and thereupon filed written objections and complaint, in substance, that on July 6, 1902, Catherine Faylor died testate in Wells county, the owner of real and personal property of the value of $20,000, leaving as her only heirs at law the objector, appellant, and certain other designated persons; that the pretended will and testament of said Catherine Faylor, deceased, dated January 29, 1900, has been presented to the clerk of this court for probate. The plaintiff objects to the probate of said will on the following grounds: That, First, said Catherine Faylor at the time of the attempted execution of said pretended will, was of unsound mind; second, that said pretended will was not duly executed. That on the 4th day of September, 1902, there was filed in this court a complaint against one David D. Studebaker, to resist probating said pretended will, in which all of said above-named heirs were plaintiffs, and said David D. Studebaker was defendant, and setting forth the same facts relative to said will as specified in his petition. That said cause has never been finally settled, but has been continued by agreement, pending litigation between said parties, which litigation was known of by said Roy Fehler. That this complaint is not filed for delay or vexation, but that in three different cases tried by different courts, the evidence has been that said Catherine Faylor was of unsound mind at the time of the execution of said will. George Mock, for and on behalf of the plaintiff herein, swears that he is one of the attorneys for said Thomas Faylor; that it is impossible to get an affidavit to said plaintiff in time to comply with the order thereof, and file the same in the time given, and that he makes this affidavit for and on his behalf, and that the subject-matters set forth herein are true in substance and in fact, as he verily believes; that this morning was the first that the attorneys or said Thomas Faylor knew that said Roy Fehler had any interest set over to him by the terms of said pretended will. This instrument is sworn to by George Mock, Esq. On motion of appellee Roy Fehler, these objections were stricken out, on the grounds: First, that they were not filed within the time allowed by law; and second, that they were filed by one George Mock, and not by Thomas Faylor, to which ruling an exception was reserved. The record shows leave generally to appellant, Thomas Faylor, to file objections to the probate of the will, and it does not show that any time was asked or refused in which to properly prepare and file such objections, but, immediately following the granting of the leave, the objections were filed as herein shown, and on their being stricken out no further time was asked or refused, and the matter was at once submitted to the court for hearing, on motion of Roy Fehler, a jury being waived, and the evidence heard, and the will ordered probated. The evidence taken on the hearing of the motion to admit to probate is brought into the record by a bill of exceptions, consisting of the evidence of one of the witnesses to the will that it was duly signed by the testatrix and the subscribing witnesses, and that she was more than 21 years of age and of sound mind at the time of its execution, and the entry July 10, 1902, in vacation, showing the presentation of the will for probate by David D. Studebaker (executor named in the will), and that, objections to probate having been filed, the matter is continued until the next term of court, and this was all the evidence given in the cause.

February 21, 1913, appellant filed his written motion to set aside the order of admission to probate on the grounds: First. That on the 8th day of July, 1902, Catherine Faylor died in Wells county, Ind., and that on the 10th day of July, 1902, Peter Faylor, for and on behalf of the heirs of said decedent, filed in the office of the clerk of Wells county his sworn objections to the probating of any will in said estate as shown by Order Book Probate Record 15, p. 171, of this court. That on the 10th day of July, 1902, and after said objections were so filed, David D. Studebaker presented said will for probate to said clerk. That the clerk of said court thereupon refused to probate said will, and on the 1st day of the September term, 1902, of the Wells circuit court, a complaint was filed by said Peter Faylor, et al., including this plaintiff, and petitioner, and summons issued thereon, and a full appearance entered against said David Studebaker, and for him, in said cause. That said motion has been pending ever since in the said Wells circuit court, and said objections and complaint still pending, and never withdrawn by any person, and that said cause was set down for trial at this term of court for trial, at the regular setting of cases on said trial calendar, and that the continuance of said cause has been by agreement from term to term since the filing of the same. That said Roy Fehler never asked to be made a party to said cause, never had any appearance noted therein, and was never represented by any person in any of said litigation. That on the 19th day of February, 1913, and before said will was probated, said Thomas Faylor petitioned to file objections to the probate thereof, which was granted, and he did file his complaint and objections to the probate thereof, to which said Roy Fehler filed a motion to strike out said complaint and objection, which motion was sustained by the court, and exception to such ruling and decision was taken by Thomas Faylor. Second. That at the time of the execution of said pretended will, and for a number of years prior thereto, said Catherine Faylor was a person of unsound mind, as alleged in the objections of Peter Faylor and filing of the complaint by the heirs of Catherine Faylor. Third. That in the case of Thomas Faylor et al., being the heirs of said Catherine Faylor, deceased, against David D. Studebaker, which was tried four different times, the great weight of the evidence, and the findings of the courts trying said causes, was that said Catherine Faylor was of unsound mind, and that said decision was sustained by the Appellate Courts of this state. Fourth. That at the time said Roy Fehler filed his petition in this court to have said will probated, he knew, or by the examination of the records of this court could have known, that objections had been filed against the probating of said will, and that the trial of said objections had not been had, or such questions as were raised therein had not been determined and adjudicated. Fifth. That the ruling, decision, and judgment of the court in probating said will of Catherine Faylor while said objections remained unadjudicated was wrong, and contrary to the law. Notice of this motion was ordered and given by appellee Roy Fehler for February 24th and on that date the motion was...