Hamilton v. Huntington

• Decision Date: 14 February 1945
• Docket Number: 28032.
• Citation: 59 N.E.2d 122,223 Ind. 143
• Parties: HAMILTON v. HUNTINGTON et al.
• Court: Indiana Supreme Court

59 N.E.2d 122

223 Ind. 143

HAMILTON v. HUNTINGTON et al.

No. 28032.

Supreme Court of Indiana

February 14, 1945

For former opinion, see 58 N.E.2d 349.

Appeal from Morgan Circuit Court; Omar O'Harrow, Judge.

Kivett, Chambers & Kivett and Rocap &amp Rocap, all of Indianapolis, and Vernon & Vernon, of Martinsville, for appellant.

Paul G. Davis and Grabill & Baker, all of Indianapolis, and Homer Elliott, of Martinsville, for appellees.

PER CURIAM.

In a petition for rehearing appellees say that our original opinion has the effect of overruling a long line of cases none of which was mentioned in the opinion, namely McGeath v. Starr, 1901, 157 Ind. 320, 61 N.E. 664; Faylor v. Fehlor, 1914, 181 Ind. 441, 104 N.E. 22; Voyles v. Hinds, 1917, 186 Ind. 38, 114 N.E. 865 and other cases. They rely upon the fact that in the original opinion it was stated that :

'So construed, § 1, ch. 2, Acts of 1857 (§ 6-308, Burns' 1933, § 3044, Baldwin's 1934), means that the probate court is authorized, in its discretion, to appoint a special administrator when the steps contemplated by § 7-503 Burns' 1933, § 3393, Baldwin's 1934, have been taken to delay the probate of an alleged will, in anticipation of the filing of an action to contest under § 7-505, Burns' 1933, § 3397, Baldwin's 1934.'

And they say that the omission of § 7-504, Burns' 1933 Supp., in the last line of the above quotation indicates that the court now thinks that an action to contest is begun exclusively under § 7-505. We have no such conception. Both 7-504 and 7-505 have provisions which must be complied with whether the action to contest is brought before or after probate as was properly held in McGeath v. Starr, supra, and the other cases cited.

Appellees further contend in their petition for rehearing that § 1 of the Act of 1857, c. 2, § 6-308, Burns' 1933, is not ambiguous. If this were true we would have no right to construe the act. The conflicting contentions of the parties are correctly stated in the original opinion. Appellants took the position that the words 'notice of contest' in § 6-308 referred to the clause 'objection thereto, in writing' in § 7-503 and we accept this construction. Upon the filing of the 'objection' the clerk is thereby notified not to permit the will to be probated until the 'person contesting,' which necessarily must refer to the person who has filed the objection, has failed to pursue the subsequent steps under §§ 7-504 and 7-505 that would make his objection effective. Where as provided in the latter part of § 7-503 the objection is made (which perhaps means renewed) before such court, it is notice to the judge who is required to allow a reasonable time in which to take the additional subsequent steps. The case of McGeath v. Starr [157 Ind. 320, 61 N.E. 665] correctly states that:

'The procedure as to notice to the parties when the probate is resisted by complaint filed in the circuit court is the same in all respects as upon the contest of a will after probate.'

The notice to the parties referred to in this quotation is entirely different from the notice to the clerk or judge given by the objection. If a verified complaint resisting probate is filed before the will is offered, such complaint serves the purpose of...