Jones v. Casler

• Decision Date: 13 November 1894
• Docket Number: 16,882
• Citation: 38 N.E. 812,139 Ind. 382
• Parties: Jones et al. v. Casler
• Court: Indiana Supreme Court

38 N.E. 812

139 Ind. 382

Jones et al. v. Casler

No. 16,882

Supreme Court of Indiana

November 13, 1894

From the Wells Circuit Court.

The judgment is reversed.

L. Mock and A. Simmons, for appellants.

E. R Wilson, J. J. Todd, F. M. McFadden and W. H. Eichhorn, for appellee.

Hackney C. J. Dailey, J., did not participate considering this appeal.

OPINION

Hackney, C. J.

This was a suit by the appellee to establish and probate the last will of Clarissa E. Jones.

By the first paragraph of the complaint, it was alleged that said Clarissa died testate, leaving certain real estate; that she left her husband, Jacob Jones, and one child, Anna, surviving her; "that after the death of the said Clarissa Jones her husband, Jacob Jones, with the fraudulent intent of cheating and defrauding this plaintiff, knowingly and fraudulently, and without the plaintiff's consent, burned and destroyed" the last will of said Clarissa, which had, in the lifetime of said Clarissa, been made, signed, and published in the presence of three named persons who signed said will as attesting witnesses.

It is alleged, generally, that the testator, by said will, devised said lands to said Jacob Jones for and during his natural life, and that "said will further provided that after the death of said Jacob Jones, said Clarissa gave and devised said real estate to the plaintiff, Herbert B. Casler, in fee, provided that she, the said Clarissa, should not have a child living at the time of the death of said Jacob Jones."

And said will further provided that if she, the said Clarissa, should have a child, and the child lived, and was living at the time of the death of said Jacob Jones, the real estate was to be divided equally between said child and Herbert B. Casler.

It is also alleged that by reason of the destruction of the will, the substance thereof only can be given, which, he alleges, is stated as above.

Appellants object to the sufficiency of this paragraph as not alleging that the will was in existence at the time of the death of said Clarissa, and that all of the provisions of the will are not pleaded with clearness and certainty, but that the allegations as to its provisions are conclusions, and not statements of fact.

The allegations of the execution of the will, the intestacy of the testatrix, and the destruction of the will after her death, sufficiently showed the existence of the will at the death of the testatrix. The allegations of the contents of the will are general, and, under ordinary circumstances, would be insufficient; but the facts alleged, if proven as alleged, would certainly authorize the establishment of the will so far as its bequests are concerned. To require that a copy of the will or the language of the bequests, in detail, should be pleaded, where no copy has been preserved and where the memory of witnesses does not hold the exact words, would not only deny the substance for mere form, but would offer a premium upon the rascality of one whose interests might suggest the destruction of the will.

As said in Anderson v. Irwin, 101 Ill. 411: "The instrument in controversy having been destroyed without the fault of the defendant in error, * * * and there not appearing to be any copy of it in existence, it would be equivalent to denying the complainant relief altogether to require her to prove the very terms in which it was conceived. All that could reasonably be required of her under such circumstances, would be to show in general terms the disposition which the testator made of his property by the instrument,--that it purported to be his will, and was duly attested by the requisite number of witnesses."

In Allison v. Allison, 37 Ky. 90, 7 Dana (Ky.), 90, it was said, in speaking of the character and extent of proof required in such a case: "Nor is there any just ground to object to the proof, because the witnesses have not given the language of the will, or the substance thereof. They have given the substance of the different devises, as to the property or interest devised, and to whom devised. And we would not stop, in the case of a destroyed will, to scan with rigid scrutiny the form of the proof, provided we are satisfied of the substance of its provisions."

In Early v. Early, 5 Redf. (N. Y.) 376, is the following language applicable to this question and to section 2609, R. S. 1881, cited by appellants' counsel: "Section 1865 of the code requires that the provisions of a lost will must be clearly and distinctly proved by at least two credible witnesses, before it can be admitted to probate; but this section must receive a liberal construction (Hook v. Pratt, 8 Hun 102 (109)); and its spirit is complied with by holding that it applies only to those provisions which affect the disposition of the testator's property, and which are of the substance of the will."

In our opinion, the first paragraph of complaint was not subject to demurrer for want of sufficient facts in the respects urged by the appellants.

The second paragraph of complaint differs from the first in containing what is alleged to be the substance of the entire will which is embodied in the pleading in the form in which it was drafted.

The objections urged to the first paragraph are urged also to the second, and for the reasons above stated must fail. In addition to the objections there urged, it is further claimed that the second paragraph was insufficient in failing to allege the county and State wherein Clarissa E. Jones died. To this proposition is cited section 2580, R. S. 1881. Under that provision of the statute, if the testatrix owned, at her death, the lands devised, and which were alleged to be situated in Wells county, Indiana, the place of her residence or of her death, was immaterial, since the location of assets determines the county in which proof of wills may be taken. However, this proceeding comprehends more than the probating of the will, its primary object is to establish the will. The gravamen of the complaint, upon this branch, is the fraud of Jacob Jones in destroying the will. This question is one peculiarly within the equitable jurisdiction of the courts, and does not arise upon, but is simply recognized by the statute, and some rules of procedure are laid down. Hall v. Gilbert, 31 Wis. 691. Under our code, which strikes down the distinctions, in practice, between actions at law and suits in equity, remedies invoking both jurisdictions may be combined in one proceeding, and the complaint is not demurrable if it pleads a right within either jurisdiction. It will be seen, therefore, that the complaint is not subject to demurrer if appellant's position were correct upon the proposition that probate of a will is not allowed without the allegations mentioned, since it is not objectionable as invoking the equitable jurisdiction of the court.

On behalf of the appellant Benjamin F. Starr, administrator of the estate of said Jacob Jones, deceased, it is assigned as error, and argued that the complaint did not state facts sufficient to constitute a cause of action. The record discloses that upon application of the appellee the said Starr, as such administrator, was made a party to the action, and was brought into court to answer the complaint; however, there was no allegation in the complaint that he was such administrator, or in any manner connecting him with the cause of action, though his name appears in the list of defendants given in the title of the action at the heading of the first paragraph of complaint.

The appellee now insists that Starr, as administrator, was not a proper or necessary party to the action, and that no judgment or decree was rendered against him from which this appeal may be prosecuted. The decree simply found the execution and destruction of the will, its provisions, and the death of the testatrix, of her daughter Anna, and of said Jacob Jones, and decreed that said will be established and admitted as probated. The general character of the decree is probably broad enough to preclude all persons who were parties to the record, and that Starr was not a party to the record is not asserted. There was, therefore, a final judgment from which his appeal lies. Was the complaint sufficient, as to Starr, after verdict? Verdicts do not cure defects which consist in the entire omission of facts essential to a cause of action. We can not escape the conclusion that each paragraph of complaint was insufficient as to the appellant Starr, administrator.

Upon the return of a special verdict by the jury, the appellants filed their motion for a venire de novo, which motion was overruled, and that ruling is here urged as error. One of the propositions urged is that the verdict had no finding as to whether the provisions of the will had been proven by two witnesses. Omitted essential facts do not vitiate a special verdict, and motion for a venire de novo will not lie therefor. Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Board, etc., v. Pearson, 120 Ind. 426; Branson v. Studabaker, 133 Ind. 147, 33 N.E. 98; Equitable, etc., Ins. Co. v. Stout, 135 Ind. 444, 33 N.E. 623.

It is further urged upon that ruling, that the special verdict contained conclusions. That some of the findings may be mere conclusions, opinions, or evidentiary facts or circumstances does not admit the motion for a venire de novo, but such improper findings are disregarded. See cases last above cited, together with the following cases cited by the appellants: Conner v. Citizens St. R. W. Co., 105 Ind. 62; Lake Shore, etc., R. W. Co. v. Stupak, 123 Ind. 210, 23 N.E. 246.

The office of the motion is to secure another trial because of the insufficiency of the verdict, general or special, to support a judgment in favor of...