Maddox v. Mock

• Decision Date: 02 November 1966
• Docket Number: No. 31061,31061
• Citation: 248 Ind. 55,220 N.E.2d 773
• Parties: Jennie MADDOX, Appellant, v. George MOCK et al., Appellees.
• Court: Indiana Supreme Court

Page 773

220 N.E.2d 773

248 Ind. 55

Jennie MADDOX, Appellant, v. George MOCK et al., Appellees.

No. 31061.

Supreme Court of Indiana.

Nov. 2, 1966.

Rehearing Denied Dec. 29, 1966.

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, Robert L. Smith, Portland, for appellees.

JACKSON, Judge.

This case comes to us on 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 Court.

Appellant brought this action in the Wells Circuit Court to set aside the probate of an instrument purporting to be the Last Will and Testament of Chloe Lancaster on the ground the probated will had been revoked by the execution of a later will. The will admitted to probate and record bore the date of August 26, 1955, and was offered and admitted to probate in the Wells Circuit Court on May 4, 1957. Appellant alleged that decedent died on May 1, 1957, leaving as her sole and only heir at law the appellant, a sister of decedent.

The prayer of appellant's seventh amended complaint requested the following relief:

'(1) That said pretended Last Will and Testament dated August 26, 1955, be declared null and void and of no effect and that the probate thereof be set aside and revoked.

'(2) That the Letters Testamentary issued to Defendant, George Mock, Executor of the Estate of Chloe Lancaster, deceased, under said pretended Last Will and Testament be set aside and revoked.

'(3) That said decedent be adjudged to have died intestate.

'(4) For all other and further relief proper in the premises.'

The appellees demurred to appellant's seventh amended complaint on the ground that, '(s)aid seventh amended complaint to set aside and contest will does not state facts sufficient to constitute a cause of action in the plaintiff Jennie Maddox.'

The demurrer was accompanied by a memorandum in which appellees urge that actions to contest the validity and to resist or set aside the probate of an alleged will are purely statutory and can be successfully maintained only in the manner and within the limitations prescribed by statute. State ex rel. Wilson, etc. v. Howard Cir. Ct., etc. (1957), 237 Ind. 263, 145 N.E.2d 4; Moll et al. v. Goedeke et al. (1940), 107 Ind.App. 446, 25 N.E.2d 258.

Such memorandum also contained the following statements:

' § 7--117 Burns Indiana Statutes Annotated, 1953 Replacement, (§ 717, ch. 112, Acts 1953) provides that 'Any interested person may contest the validity of any will * * *'. All previous Indiana statutes governing actions to contest the validity of wills provided that 'Any person may contest the validity of any will * * *'. The comments of the Probate Code Study Commission which accompany said § 7--117 Burns 1953 Replacement state that the insertion of the word 'interested' between the words 'any' and 'person' in the first line of said section did not change the meaning or substance of the previous statutes.

'The Indiana Supreme Court, in construing the validity of the phrase 'any person may contest the validity of any will' as used in the previous Indiana Statutes, has repeatedly held that such language was limited by § 251 R.S. 1881 (now § 2--201 Burns 1933), which provides that 'Every action must be prosecuted in the name of the real party in interest', with certain exceptions not material to this case; and that therefore a suit to contest the validity of a will could only be prosecuted by a person having some kind of an interest in the subject matter involved in the contest.

Niederhaus vs. Heldt et al. (1867), 27 Ind. 480; Schmidt vs. Bomersbach (1878), 64 Ind. 53; McDonald et al. vs. McDonald et al. (1895), 142 Ind. 55, 41 N.E. 336; Thompson vs. Turner (1909), 174 (173) Ind. 593, 89 N.E. 314; Emhardt, Admr. vs. Collet et al. (1921), 191 Ind. 215, 131 N.E. 48.

'In determining the sufficiency of the allegations of the seventh amended complaint for the purpose of ruling on this demurrer, the Court must take into consideration the fact that these defendants filed their motion to state facts to sustain conclusion, requesting that the plaintiff be required to state the facts necessary to sustain the following conclusion, 'and, therefore, said decedent died intestate', as alleged in line 4 of rhetorical paragraph 11 of plaintiff's seventh amended complaint; and that the Court overruled such motion to state facts. Under these circumstances the action of the Court must be deemed a decision of the Court, procured by and binding upon the plaintiff, that all the facts relied upon by the plaintiff to support said conclusion were already stated in the seventh amended complaint, and no facts, not therein pleaded, may be implied from said conclusion to sustain the seventh amended complaint on demurrer or considered in determining the sufficiency of the seventh amended complaint. Terre Haute, etc. Traction Co. vs. Scott (1926) 197 Ind. 587, 150 N.E. 777, 43 A.L.R. 1029; Pier vs. Schultz et al. (1962) (243) Ind. (200), 182 N.E.2d 255. See also Enterprise etc. Pub. Co. vs. Craig (1924), 195 Ind. 302, 144 N.E. 542, 145 N.E. 309; Davis vs. Louisville and Nashville Railroad Company (1961) (132) Ind.App. (419), 173 N.E.2d 749.

'The demurrer to a complaint for want of facts to state a cause of action calls in question not only the sufficiency of the facts stated in the complaint but also the right of plaintiff to maintain the action. Pence vs. Aughe (1884), 101 Ind. 317; and where the face of a complaint shows a cause of action in a third person and not in plaintiff, it is bad on demurrer for want of facts. State ex rel. City of Loogootee vs. Larkin et al. (1941), 218 Ind. 382, 33 N.E.2d 112; Sinker vs. Floyd (1885), 104 Ind. 291, 4 N.E. 10; Bond vs. Armstrong (1882), 88 Ind. 65.'

Appellees further contend in their memorandum line 19 page 19 of the transcript that,

'The burden is on the plaintiff, not only to plead a cause of action against the defendants, but also to plead facts to show that she is a real party in interest. By pleading facts to show that another Will was executed after the date of the probated Will, she has pleaded that a cause of action exists against the defendants; but by failing to plead facts to show that such later Will was revoked, she has failed to plead that as an heir-at-law she is a real party in interest to this suit to set aside probate of the August 26, 1955 Will, and the demurrer should be sustained.'

The trial court sustained the demurrer to the seventh amended complaint. Appellant refused to plead further; thereupon the court entered judgment on the demurrer that plaintiff take nothing by said complaint and that the defendants have judgment for their costs. Appellant perfected her appeal to the Appellate Court and assigned as error '1. The court erred in sustaining Appellees' Demurrer to Appellant's Seventh Amended Complaint.'

The Appellate Court in due time reversed the trial court and appellees filed their petition to transfer. The grounds on which appellees' seek such transfer are recited in paragraph five (5) of their petition, which reads as follows:

'5. Appellees show to the Court that the opinion of the Appellate Court erroneously decides a new question of law in this, that the transcript and assignment of errors present a new question of law which is also presented by the brief of the appellees, to-wit: In a complaint by the sole heir at law to contest the probated will of the decedent, wherein the plaintiff has alleged facts which establish that the probated will was revoked by the due execution of a later will of the decedent which disposed of all of the decedent's property to persons other than plaintiff; by which complaint the plaintiff made the personal representative of the probated will and all of the persons beneficially interested under the terms of the probated will parties defendant to such action but did not make the personal representative of the later will nor any of the persons beneficially interested under the terms of the later will parties defendant, it is necessary that the plaintiff allege additional facts sufficient to establish that such later will was not in effect at the decedent's death in order to withstand a demurrer on the ground that such complaint failed to state facts sufficient to constitute a cause of action in plaintiff because such complaint does not allege sufficient facts to show that the plaintiff as such sole heir at law is an 'interested party' within the meaning of that term as used in Acts 1953, ch. 112, § 717; § 7--117 Burns' 1953 Replacement.

'That said question was erroneously decided by the Appellate Court by its quoting the following portion of Miller v. Munzer (Mo.App.1952) 251 S.W.2d 966:

"Respondent further claims that in any event plaintiff may not maintain this action because, in setting up the subsequent will of 1936 containing a revoking clause, plaintiff did not allege that plaintiff was a beneficiary under the 1936 will; that the only persons having an interest in contesting the 1933 will are those persons named as beneficiaries under the 1936 will. This position is without merit. Nothing more was required of plaintiff to show that he was a real party in interest than to allege and prove that he, as an heir of Phil Miller, deceased, would share in the distribution of the estate of the deceased in case of intestacy. It was not necessary that plaintiff be named as a beneficiary in the subsequent revoking will. An heir is entitled to contest a probated will of a decedent although he was excluded by a previous will which had not been probated, Marr v. Barnes, 126 Kan. 84, 267 P. 9; Murphy's Executor v. Murphy, 65 S.W. 165, 23 Ky.Law Rep. 1460, or by a subsequent unprobated will. The reason is that the previous or subsequent will...