Kirby v. Kirby

• Decision Date: 31 October 1895
• Docket Number: 17,493
• Parties: Kirby et al. v. Kirby
• Court: Indiana Supreme Court

41 N.E. 809

142 Ind. 419

Kirby et al. v. Kirby

No. 17,493

Supreme Court of Indiana

October 31, 1895

From the Decatur Circuit Court.

The judgment is reversed, with instructions to overrule the demurrer to the answer and to the cross-complaint, and for further proceedings.

J. D Miller and J. H. Parker, for appellants.

W. A Moore and O. G. Miller, for appellee.

OPINION

Howard, C. J.

An abstract of the pleadings, as set out in the appellants' brief, and as admitted to be correct by appellee, shows substantially, that the action was by appellee against appellants, his minor children, to quiet title to real estate.

A guardian ad litem was appointed for appellants and filed an answer, and also a cross-complaint, to each of which a demurrer was sustained. This ruling is assigned as error.

The facts stated in the answer and in the cross-complaint are the same, and are briefly as follows:

That Clay M. Kirby, who was the father of appellee, and the grandfather of appellants, was during his lifetime the owner of the land in controversy, and by his last will devised the same to appellants; that after the death of said testator and the probate of his will, the appellee and the other children of the decedent wrongfully conspired and confederated together to deprive the appellants of said land, and to distribute the same among themselves; that, in pursuance of such conspiracy, they caused to be filed in the court below, against the appellee and the appellants, and also the executor of the will, a complaint by the remaining children of the said Clay M. Kirby, to contest and set aside his said will, alleging that the same was unduly executed and that it was procured by the undue influence of the appellee over the said testator; that on the call of said cause the executor of said will and the guardian ad litem for appellants each filed an answer in general denial, while the appellee suffered default, whereupon the cause was submitted to the court for trial, and judgment was entered setting aside the will; that said judgment and decree were wrongful, and were procured by fraudulent devices and artifices, whereby the court was imposed upon and deceived and the meritorious defense which appellants had, but which, because of their extreme youth, they were prevented from presenting to the court, was concealed and hidden; that neither the executor nor the guardian ad litem made any preparation for an actual defense to said action; that no witnesses were subpoenaed for appellants; that although the attorney who drew the will and also one of the attesting witnesses were in court at the time of the trial, and the other attesting witness was near at hand, all of whom, if called, would have given evidence of the due execution of the will, and that the same was not procured by undue influence, yet none of said witnesses were called to give any evidence; that the only witness examined was one of the plaintiffs, whose competency was doubtful, and who had not been present at the...