Maddox v. Mock
| Citation | 196 N.E.2d 412 |
| Decision Date | 02 March 1964 |
| Docket Number | No. 1,No. 19970,19970,1 |
| Parties | Jennie MADDOX, Appellant, v. George MOCK, Executor of the Estate of Chloe Lancaster, Deceased, et al., Appellees. . Division |
| Court | Indiana Appellate Court |
Gallivan & Hamilton, Dwight F. Gallivan, A. Walter Hamilton, Ned R. Carnall, Bluffton, for appellant.
Bonham & Emshwiller, Robert W. Bonham, Jr., Hartford City, George Mock, Daniel S. Harsh, Bluffton, Smith & Fraser, Portland, for appellees.
The appellant, as sole heir at law of Chloe Lancaster, deceased, brought this action to contest the will of decedent dated August 26, 1955, and admitted to probate on May 4, 1957, on the ground that such will had been revoked by a later and subsequent will, inconsistent therewith, dated April 15, 1957. To appellant's seventh amended complaint appellees demurred on the ground that the amended complaint did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and appellant refusing to plead over, judgment was entered thereon. Appellant assigns as error the sustaining of appellees' demurrer to appellant's seventh amended complaint.
The complaint alleges, inter alia, the death of decedent on May 1, 1957; that she left surviving her as her sole and only heir at law her sister, the appellant, Jennie Maddox; that an instrument dated August 26, 1955, purporting to be the last will and testament of decedent, was admitted to probate in the Wells Circuit Court on May 4, 1957; that appellee, George Mock, thereafter qualified as executor thereof; that on April 15, 1957, decedent executed a will inconsistent with the provisions of the probated will, and that the 1957 will was delivered to appellee George Mock who has refused to produce it. The relief prayed for is that the 1955 will be declared null and void and its probate be set aside; that Letters Testamentary issued to George Mock be revoked; and that decedent be adjudged to have died intestate.
Appellees contend that appellant, not being named as a beneficiary in either the 1955 will or the 1957 will, was not an 'interested person' under Acts 1953, ch. 112, § 717, p. 295, being § 7-117, Burns' 1953 Replacement, which reads as follows:
'Any interested person may contest the validity of any will or resist the probate thereof, at any time within six months after the same has been offered for probate, by filing in the court having jurisdiction of the probate of the decedent's will his allegations in writing verified by affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress, or was obtained by fraud, or any other valid objection to its validity or the probate thereof; and the executor and all other persons beneficially interested therein shall be made defendants thereto.'
This section (previously codified at § 7-504, Burns' 1933 Replacement) must be read in conjunction with Acts 1881 (Spec.Sess.), ch. 38, § 3, p. 240, being § 2-201, Burns' 1946 Replacement, which reads, in part, as follows:
'Every action must be prosecuted in the name of the real party in interest, * * *.';
and the two sections have been construed to require that the plaintiff in a will contest must be a person interested in the will or who will be affected by its probate. Hilfiker v. Fennig (1947), 224 Ind. 594, 598, 69 N.E.2d 743; Crawfordsville Trust Co. v. Ramsey (1912), 178 Ind. 258, 266, 98 N.E. 177; Thompson v. Turner (1910), 173 Ind. 593, 595, 89 N.E. 314; Herbert v. Nat. City Bank, Exr. (1929), 88 Ind.App. 626, 628, 165 N.E. 80.
Appellant has alleged in her amended complaint that she is the 'sole and only heir at law' of the decedent. Does this sufficiently allege an interest in the estate to constitute appellant a real party in interest to prosecute the within action?
The amended complaint herein alleges that decedent died intestate. This is a conclusion of law and is not, therefore, admitted as true by the demurrer. Loftin v. Johnson (1940), 216 Ind. 537, 540, 24 N.E.2d 916; Greathouse v. Board, etc. (1926), 198 Ind. 95, 108, 151 N.E. 411. All matters otherwise well pleaded in the complaint are admitted as true by the demurrer. State ex rel. Scher v. Ayres (1940), 217 Ind. 179, 182, 26 N.E.2d 1002.
The execution of a new will, making another and inconsistent disposition of the testator's property, operates as a revocation of a former will disposing of the same property, and this is so whether the former will is expressly revoked by the latter or not. Kern v. Kern (1900), 154 Ind. 29, 37, 55 N.E. 1004; Burns v. Travis (1889), 117 Ind. 44, 47, 18 N.E. 45; State, ex rel. Brown v. Crossley et al. (1879), 69 Ind. 203, 211.
A will may become operative as a revocation of a former will, although inoperative in other respects. Burns v. Travis, supra. Therefore, the execution of the 1957 will would operate to revoke the 1955 will. To establish the 1957 will as the last will of the decedent, it would be necessary to comply with the provisions of the Probate Code providing for the probate of wills. Acts 1953, ch. 112, § 703, et seq., § 7-103, et seq., Burns' 1953 Replacement.
Manifestly, an heir who is not named as a beneficiary in a probated will is a proper party to contest its validity by allegation of facts which establish that the decedent died intestate since the heir would thus share in the estate under the laws of intestacy and would certainly be affected by the probate of such will. The same would be true of an heir who would take more under the intestate laws than he takes under the provisions of the probated will. Herbert v. Nat. City Bank, Exr., supra, (1929), 88 Ind.App. 626, 628, 165 N.E. 80.
This court has been unable to find, nor do the attorneys for the parties cite, any case wherein identical facts as those here considered were involved, namedly: the right of a sole heir at law to contest the probate of a will by alleging its revocation by showing the execution of a subsequent inconsistent will where the sole heir at law was not a beneficiary under either will.
In Hilfiker v. Fenning, supra (1947), 224 Ind. 594, 69 N.E.2d 743, a will dated March 29, 1933, with codicils made in 1933 and 1939, was admitted to probate. Two of the legatees under a later conflicting will dated August 2, 1941, filed complaint to contest the 1933 will on the ground that it was revoked by the later will. Defendants were beneficiaries and executors under the earlier will. The heirs of the decedent were not joined in the suit. 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 decedent was of unsound mind when he signed them. Defendants filed...
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Maddox v. Mock
...petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, § 4--215, Burns' 1946 Replacement. See Maddox v. Mock (1964), 196 N.E.2d 412 for opinion of Appellate Appellant brought this action in the Wells Circuit Court to set aside the probate of an instrument purpo......