Gfroerer v. Gfroerer

• Decision Date: 02 February 1910
• Docket Number: No. 21,585.,21,585.
• Citation: 90 N.E. 757,173 Ind. 424
• Parties: GFROERER et al. v. GFROERER et al.
• Court: Indiana Supreme Court

173 Ind. 424

90 N.E. 757

GFROERER et al.

v.GFROERER et al.

No. 21,585.

Supreme Court of Indiana.

Feb. 2, 1910.

Appeal from Superior Court, Vigo County; J. O. Prity, Judge.

Action by Anna Gfroerer and others against Peter Gfroerer and others. From a judgment for plaintiffs, defendants appeal. Affirmed.Peter Maier, for appellants. James B. Mullikin, Harry S. Wallace, and Linus A. Evans, for appellees.

HADLEY, C. J.

Action by appellees to establish and probate a will alleged to have been executed by Katherine Gfroerer in the year 1906 in favor of appellees. The complaint is in one paragraph, to which appellants' demurrers for insufficiency of facts were overruled.

In substance, it was alleged in the complaint that Katherine Gfroerer died on October 5, 1906, a resident of Vigo county, leaving an estate in said county, real and personal, to be administered; that an administrator was appointed. But it is averred the decedent, in the month of September, 1894, duly executed her last will in the presence of David W. Henry and George M. Crane, and by them, at her request, attested as subscribing witnesses; that the testatrix never revoked said will. “And plaintiffs alleged that during the lifetime of said testatrix her last will, so executed as aforesaid, was destroyed without her consent, and without the consent of these plaintiffs; said destruction of said will never having come to the knowledge of said testatrix.” It is also averred that “by the terms of said will the testatrix devised and bequeathed all of her property, real and personal, to the plaintiffs, share and share alike.” Other formal averments are made.

It is urged that the complaint is insufficient, because (1) it fails to state when, where, how, and by whom the will was destroyed; and (2) that the last clause above quoted stated a mere conclusion, and not a fact. With respect to the first, the statute pertinent to the case reads as follows: “No will of any testator shall be allowed to be proven and established as lost or destroyed, unless the same shall be proven to have been in existence at the time of the death of the testator; or be shown to have been destroyed in the lifetime of the testator without his consent, or otherwise fraudulently disposed of.” Section 3167, Burns' Ann. St. 1908. It will be observed that the averment of the complaint as first quoted above is clearly within the letter of the statute; and as against a demurrer, for want of facts, we think it is sufficient without stating the time, place, when, how, and by whom destroyed. Kellogg v. Ridgley, 161 Ind. 110, 67 N. E. 929;Kaster v. Kaster, 52 Ind. 532. If the defendants had at the time of forming the issues felt the need of more definite information as now claimed, they might doubtless have obtained it by motion, on a proper showing. The clause “said destruction of said will never having come to the knowledge of said testatrix” amounts to nothing as an averment of fact, and might have been stricken out without affecting the strength of the complaint. The second objection to the complaint is without merit. As a means of identifying the beneficiaries of the alleged will, and as exhibiting the plaintiffs' right to bring the action, it was sufficient.

The other specifications of error are predicated upon the motion for a new trial, and question the striking out of the testimony of a witness and the sufficiency of the evidence to sustain the finding of the court. Appellees insist that these questions are not presented because there is no affirmative showing that the alleged bill of exceptions, containing the evidence, was ever filed as a document in the cause, and cannot therefore be treated as a part of the record. It appears from the transcript that appellant was given 90 days in which to prepare and file a bill of exceptions. The next entry, and on the same page of the transcript, reads thus: “Comes now the defendant, and presents amended bill of exceptions, which is signed by the court, ordered filed, and made a part of the record in this cause, which bill of exceptions is in the words and figures, to wit.” Then follows what purports to be a complete copy of the evidence, at the conclusion of which appears a certificate of the trial judge, in full accord with the above entry,...