McDonald v. McDonald

• Decision Date: 19 September 1895
• Parties: McDONALD et al. v. McDONALD et al.
• Court: Indiana Supreme Court

142 Ind. 55

41 N.E. 336

McDONALD et al.

v.McDONALD et al.

Supreme Court of Indiana.

Sept. 19, 1895.

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.

JORDAN, J.

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: “Said pretended will was unduly executed. Said pretended will was obtained by the undue influence of said Josephine F. McDonald, the defendant herein. Said pretended will was procured by fraud. Said pretended will was not executed by said Joseph E. McDonald, and the pretended signature of said Joseph E., thereto was not made by him or by any one in his presence, with his consent. Said pretended will was not attested and subscribed in the presence of said Joseph E. McDonald by said Alpheus H. Snow and Parke Daniels, or either of them, as witnesses thereto, and the pretended signatures of said Snow and Daniels thereto, as the attesting witnesses thereof, were not subscribed by them, or either of them, or by any one of them at their procurement, or with their knowledge or consent, and are not the act and deed of them, or either of them. That said pretended will was unduly executed, and was not executed by the said Joseph E. McDonald, deceased, for that, at or about the time said pretended will bears date, said Joseph E. McDonald executed in writing his true and genuine last will and testament, which was attested and subscribed in his presence by two competent witnesses, and which was and is in substance and to the effect as follows: (a) A direction for the payment of his debts. (b) A devise unto Josephine F. McDonald, for her life, of the real estate hereinbefore described. (c) And to said Josephine F. McDonald all his personal property at his homestead at the time of his decease. (d) To the plaintiffs Malcolm A. McDonald, Joseph E. McDonald, and Jessie C. McDonald, heirs at law of the said Joseph E. McDonald, the fee simple of the real estate above described, together with all other real and personal property of the said Joseph E. McDonald which he might have at his death, not specifically bequeathed to the said Josephine F. McDonald. (e) To the plaintiff Malcolm S. McDonald the gold watch which the said Joseph E. McDonald might have at the time of his decease, and also the law library of the said Joseph E. McDonald, if the said Malcolm should choose the profession of the law. And that said will and testament remained and was, at the death of said Joseph E. McDonald, his true and only last will and testament. And thereafter, without the knowledge or consent of the said Joseph E. McDonald or of the plaintiffs, or either of them, the said true and genuine last will and testament was removed, lost, or stolen by or at the procurement or such person or persons, concealed, suppressed, or destroyed, without the knowledge or consent of the said Joseph E. McDonald or of the plaintiffs, or either of them, and the pretended will of the said Joseph E. McDonald, as it has been admitted to probate in said court, was thereupon, by or at the procurement of such unknown person or persons, substituted or foisted in the room and place of the true and genuine last will and testament of the said Joseph E. McDonald. All of which was done without the knowledge or consent of the said Joseph E. McDonald or of the plaintiffs, or either of them. And neither the said Joseph E. McDonald, nor either or any of the plaintiffs, at any time thereafter during the lifetime of said Joseph E., had any knowledge or consented to such removal, in any way, or concealment, suppression, or destruction of the said true and genuine last will and testament of the said Joseph E. McDonald, or of the substitution therefor of said pretended will, as it has been admitted to probate. And the plaintiffs aver that they have made diligent search and inquiry to discover the said true and genuine last will and testament, so concealed, suppressed, or destroyed, but have hitherto been unable to discover the same, or to obtain any information where, or in whose possession, control, or custody the same is, and they do not know any person or persons, whom they, or either of them, can suppose to have possession, power, or control of said true and genuine last will and testament of the said Joseph E. McDonald, or against whom they, or either of them, can justifiably invoke any process of this court looking to the possible production of such true last will and testament to this court. Wherefore the plaintiffs pray the court that said pretended will be declared void, and that the probate thereof be set aside.”

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...