Hilfiker v. Fennig

• Decision Date: 05 December 1946
• Docket Number: 28270.
• Citation: 69 N.E.2d 743,224 Ind. 594
• Parties: HILFIKER et al. v. FENNIG et al.
• Court: Indiana Supreme Court

69 N.E.2d 743

224 Ind. 594

HILFIKER et al. v. FENNIG et al.

No. 28270.

Supreme Court of Indiana

December 5, 1946

Appeal from Jay Circuit Court; John W. Macy, Special Judge.

Frank B. Jaqua, Marguerite M. Hinkle, and James J Moran, all of Portland, for appellants.

Robert L. Smith, of Portland, Kenneth C. Hinshaw, of Union City, and Clarence E. Benadum, of Muncie, for appellee.

RICHMAN Judge.

On the day Henry Sheffer died, October 28, 1941, leaving a goodly estate in Jay County, there was a race to the court house for probate of two conflicting wills. The earlier bore date of March 29, 1933, with modifying codicils made in 1933 and 1939. The later will was signed August 2, 1941. Though it was term time for the Jay Circuit Court he clerk undertook the probate of the 1939 will and codicils. Before the records were completed and signed the attorney who drafted the 1941 will offered it for probate and at the same time filed written objections, signed by himself, to the probate of the 1933 will. The clerk ignored these objections and completed the records. The following day the regular judge, who had been a witness to the 1933 will, appointed an attorney as special judge who immediately qualified and in an ex parte proceeding confirmed the clerk's action. Within the statutory time two of the legatees under the 1941 will represented by the objecting attorney, filed their formal complaint to contest the 1933 will upon the ground that it was revoked by the 1941 will. The defendants named in the complaint were the beneficiaries under the earlier will and two persons nominated as executors one of whom was appellant Hilfiker. The heirs were not made parties. They later asked and were permitted to intervene and filed answer and cross complaint alleging that the first will and codicils were procured by undue influence, were unduly executed, and that the decedent was of unsound mind when he signed them. Hilfiker, represented by the attorney who had acted as special judge, filed a motion reciting that the heirs were 'not proper parties to this action and were improvidently admitted as such' and he requested not only that the answer and cross complaint be stricken but also that the order granting the leave to intervene be vacated. The order book entry shows that 'the court having examined said motion and having been fully advised in the premises sustains the same, and said motion (sic) and cross complaint is now stricken out.' By assignment of cross errors the heirs, who, with the two legatees of the 1941 will, are named as appellees herein, properly challenge this ruling as error. Examination of the record discloses that after the ruling they took no part in the proceedings below. Issues were afterwards made by denial and affirmative answer filed by Hilfiker as executor and the beneficiaries of the first will that at the time of his signing the 1941 will Sheffer was of unsound mind and unduly influenced and that it was unduly executed. Trial was without a jury. Much evidence was introduced as to the circumstances attending the execution of the 1941 will and decedent's mental capacity at that time. The court, asked to make special findings, found that he was then of sound mind, and that both wills were valid but that the later revoked the earlier and its codicils. No issue was made by the pleadings as to the validity of the 1933 will or codicils except as to their revocation by the 1941 will.

From statements of counsel made in oral argument it appears that two cases are pending involving the validity of one or both of the wills, but the existence of such cases, the court wherein pending, the parties and the issues are not shown by this record.

The Appellate Court, to which this appeal first came, held that the heirs were neither necessary nor proper parties to this action. The decisions in the cases cited as authority for that holding do not support it and the dicta therein are not persuasive. McDonald v. McDonald, 1895, 142 Ind. 55 41 N.E. 336, is not in point. In Kinnaman v. Kinnaman, 1880, 71 Ind. 417, all of a decedent's heirs joined as plaintiffs in an action to contest his will. Some of them voluntarily dismissed the action as to themselves leaving as plaintiffs two heirs and the spouse of one of them. The court held that they might proceed with the action without naming as defendants the dismissing plaintiffs, stating that the action could have been begun by one or more of the heirs. It was an action in rem of which the heirs who later dismissed took notice by originally appearing as plaintiffs. Voluntarily going out of the case they could not afterwards complain of the judgment. The defendants claiming under the will lost nothing except the active opposition of the heirs who dismissed. The case thereafter assumed some of the characteristics of a class action with two of the heirs representing the class. Here the class was wholly unrepresented over the protest of all members of the class who after voluntary appearance were involuntarily excluded. Morse v. Morse, 1873, 42 Ind. 365, was a case wherein a son and legatee...