McDonald v. McDonald
Decision Date | 19 September 1895 |
Citation | 142 Ind. 55,41 N.E. 336 |
Parties | McDONALD et al. v. McDONALD et al. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Hamilton county; R. R. Stephenson, Judge.
Action by Malcolm A. McDonald and others against Josephine F. McDonald and Theodore P. Haughey, as executors under a supposed will of defendant McDonald's deceased husband, Joseph E. McDonald. From a judgment setting aside the will, defendants appeal. Affirmed.Fishback & Kappes, A. J. Beveridge, Geo. Shirts, and A. C. Harris, for appellants. J. M. Cropsey and Miller, Winter & Elam, for appellees.
This action was commenced by the appellees, Malcolm A., Malcolm S., Joseph E., and Jessie C. McDonald, against the appellants, Josephine F. McDonald and Theodore P. Haughey, executors, etc., to set aside what was alleged to be a pretended will of the late Senator Joseph E. McDonald. A trial resulted in the jury finding in favor of the contestants, and, over appellants' motion for a new trial, the court rendered a judgment setting aside the will in contest. To reverse this judgment, appellants prosecute this appeal. Numerous alleged errors of the trial court are assigned, and many questions thereunder are presented, by appellants' learned, able, and eminent counsel. Some of these questions are now to be considered for the first time by this court, and the examination of the many authorities cited pro and con in the very ably and elaborately prepared briefs of counsel has required much labor and time. In our examination of the voluminous record, we have been subjected to more labor, and required to consume more time, than would otherwise have been necessary, had appellants complied with rule 31 of this court, in regard to placing marginal notes upon the transcript. An observance of this rule is essential upon the part of litigants, in order to assist the judges and facilitate the business of this court, which is now virtually overwhelmed with cases and labor. A noncompliance with this rule generally results in the court's setting aside the submission of the cause, at the cost of the appellants. The penalty may be a dismissal of the appeal, when deemed proper by the court.
The amended complaint in the case at bar alleges the death of Joseph E. McDonald on June 21, 1891, and that he left surviving him Malcolm A., as his only living son, and that Joseph E. and Jessie C. are his grandchildren, being the children of one Ezekiel McDonald, deceased, and Josephine F. is alleged to be the surviving widow of the testator, Joseph E.; she, as it appears, being his second, childless wife. It is then alleged substantially as follows: That in the year 1891 a certain paper, in writing, purporting to be the last will of Joseph E. McDonald, and purporting to have been signed by him, and attested by Alpheus Snow and Parke Daniels, of date August 26, 1890, was admitted to probate in the Marion circuit court, filed and recorded therein, and that letters testamentary were issued to appellant Haughey, who was named in said will as the executor thereof; that in said pretended will certaindescribed real estate in Marion county, Ind., known as the “Washington St. Property,” of which said Joseph E. died the owner, was purported to be devised to Josephine F. McDonald, who accepted the provisions of the will; and that she asserts and maintains that the same is the true and only last will of her husband, Joseph E. The complaint then charges that said pretended will is invalid, and is not the last will of said McDonald, for the following reasons:
We will consider the various points and contentions of appellants in the order in which the same have been presented in their brief. It is contended that the court erred in not sustaining the motion of the appellant Mrs. McDonald to compel the plaintiffs to elect whether they would prosecute their action upon the theory that the will in contest was a forgery, or upon the theory that the execution thereof by the testator was obtained by undue influence, and also in overruling a motion to make the complaint more specific. It is a well-settled legal proposition that a cause must be put to trial upon a definite theory, and that such theory must be outlined by the pleadings, and sustained by the law applicable to the case. The contention of counsel for appellants is that the appellees, in their complaint, assume inconsistent positions. After setting forth the grounds of contests as mentioned in the complaint, they say: “It must be apparent that, if the will was procured by undue influence, it could not have been a forgery; and, vice versa, if a forgery, it could not have been procured by undue influence.” Numerous authorities on the code practice in other states are cited to show that inconsistencies are not permitted in a single pleading or paragraph, and counsel then propound the question, “Does a complaint under the will statute have any exception, in this respect, to the general rule?” Section 2596, Rev. St. 1881 (section 2766, Rev. St. 1894),-of an act concerning wills,-is as follows: “Any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the circuit court of the county where the testator died, or where any part of his estate is, his allegation, in writing, verified by his 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...
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