Miller v. Coulter
| Decision Date | 07 March 1901 |
| Docket Number | 19,403 |
| Parties | Miller v. Coulter, et al |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
Affirmed.
T. H Palmer, W. F. Palmer, T. H. Palmer, Jr., and D. S. Holman for appellant.
J Claybaugh, N. P. Claybaugh, J. P. Gray, J. T. Hockman, A. H. Boulden and H. C. Sheridan, for appellees.
Hiram H. Bradley died August 26, 1894, leaving his widow, Sarah A., as his sole heir at law. He was seized of real and personal property of the value of about $ 18,000. Letters of administration were issued to the widow, his estate was settled by her, and she was discharged from her trust September 25, 1895. About the last of September, or the first of October, 1899, an instrument purporting to be the last will and testament of Hiram H. Bradley was found, by which he devised one-third of his property to his widow, $ 1,000 to his brother "John," $ 1,000 to a nephew, Frank Bradley, a tract of unplatted land, near the city of Frankfort, to that city conditionally, and the residue of his estate to Frankfort commandery number twenty-nine, Knights Templar. The will was retained for several months by the parties who found it, and it was then offered for probate in the Clinton Circuit Court by the persons named as executors. The widow of Bradley, who had married one Miller, objected to the probate. The regular judge of the Clinton Circuit Court being, as he thought, disqualified to try the case, he appointed Hon. James M. Rabb, the judge of the twenty-first judicial circuit, in his stead. After various steps in the cause it was submitted to a jury, who returned a verdict sustaining the will.
The first and second errors assigned question the sufficiency of the petition asking that the supposed will be admitted to probate, because of its failure to state a cause of action, and for the reason that no copy of the instrument was filed with it. No petition was necessary. An oral motion would have sufficed. The statute requires no formality in this part of the proceedings, and nothing more need be done than to present the instrument to the court, and ask that it be admitted to probate. If the request to admit the instrument to probate is presented in the form of a petition, the original instrument must be produced to the court, but no copy of it need be filed with the petition. Neither is such petition subject to demurrer. If the instrument so presented appears to have been signed and attested in the manner prescribed by the statute, and if no objection is made, the proof of its execution should be heard, and, if satisfactory, an order should be made admitting it to probate, and the certificate of probate should be indorsed upon, or attached to, the will. Objection to the probate must be made in writing, verified by affidavit that the same is not made for vexation or delay. The grounds upon which the probate may be resisted are stated in the statute. §§ 2749, 2750, 2754, 2758, 2765, 2766 Burns 1894; Evansville, etc., Co. v. Winsor, 148 Ind. 682, 48 N.E. 592; Summers v. Copeland, 125 Ind. 466, 25 N.E. 555. The demurrer to the petition might have been stricken out on motion. The court did not err in overruling it.
The answer of Barzali B. Bradley to the complaint of the contestor, Sarah A. Miller, stated that he was the brother of the testator, and that, although his name was Barzali B., the testator had been accustomed to designate and call him by the name of John Bradley, and that he was the person named and described in the will as John Bradley. He had the right to allege and prove that he was the person mentioned in the will, although misnamed. If the testator was in the habit of calling him "John", it was immaterial whether he knew his true name or not. Whiteman v. Whiteman, 152 Ind. 263, 53 N.E. 225, and cases cited. The demurrer to this answer was properly overruled.
Did the court err in overruling the motion of appellant for a continuance made February 16, 1900? It is objected that the affidavit, upon which that motion was founded, is not properly in the record. An affidavit made on that day is copied into the transcript among the proceedings of the court on February 16, 1900, but there was no authority for inserting it at that place. A bill of exceptions was filed by appellant April 4, 1900, by which the supposed error of the court, in overruling the motion for a continuance, was attempted to be presented. The affidavit is not copied into the bill, but in its stead there are the words (Here insert), followed by the statement, "Affidavit found at record, page thirty-five, line twenty-five, to page forty, line eleven." This was not sufficient to bring the affidavit into the record. The rule is that where a document has once been properly copied into the record, it need not be copied elsewhere, but the page and line where it is found may be referred to; but when it has not been properly made a part of the record it cannot be so referred to, but must be set out in the bill of exceptions. An affidavit for a continuance is a paper relating to a collateral matter, and it cannot be made a part of the record except by bill of exceptions, or the order of the court. As this affidavit had been improvidently copied in the record among the other proceedings of the court, it could not be referred to and made a part of a bill of exceptions by reference to the page and line of the transcript, but it should have been set out at length in the bill itself. § 662 Burns 1894; Vanderkarr v. State, 51 Ind. 91; Binkley v. Forkner, 117 Ind. 176, 3 L. R. A. 33, 19 N.E. 753; Seston v. Tether, 145 Ind. 251, 44 N.E. 304; Ewbank's Manual, § 26. It follows that we cannot consider the sufficiency of the affidavit.
At this point, an objection is interposed by the appellee to the consideration of any question arising upon the evidence. It is argued that the bill of exceptions by which the appellant sought to bring the evidence into the record was prepared under the provisions of the act of 1899, which have been held invalid by this court. While this is true, it appears, also, that the judge signed the bill and stated in his certificate that it contained all the evidence given in the cause. After having been so signed, the bill was again filed with the clerk of the trial court. This was sufficient. Adams v. State, post, 596.
The appellant offered in evidence the record of the settlement of the estate of Hiram H. Bradley, made before the finding of the will, and when it was supposed that Bradley died intestate. The court excluded the evidence. There was no error in this. The fact of such settlement could not, in any way, affect the validity of the will afterwards discovered.
The next reasons for a new trial discussed by counsel for appellant are the rulings of the court sustaining objections to questions put to witnesses by counsel for appellant. In every instance the exception was to the decision of the court sustaining the objection, and in no case was a statement made of the facts expected to be elicited by such question until after the decision. In this state of the record we cannot consider the points so made. The rule of procedure in such cases is of long standing, and we must adhere to it. Toledo, etc., R. Co. v. Goddard, 25 Ind. 185, 191; Baltimore, etc., R. Co. v. Lansing, 52 Ind. 229, 231; Gunder v. Tibbits, 153 Ind. 591, 55 N.E. 762; Shenkenberger v. State, 154 Ind. 630, 57 N.E. 519.
As stated by counsel for appellant, "the fifth, sixth, and seventh reasons assigned for a new trial call in question the action of the court in permitting the proponents, after appellant had closed her case, to open up their case in chief, and introduce evidence in support of their case in chief, over the objection of appellant." The admission of testimony out of its regular order is very much in the discretion of the judge trying the cause, and unless it appears that there has been an abuse of such discretion this court will not interfere on appeal. In this case the trial judge was of the opinion that the proponents of the will were required, in the first instance, to make a prima facie case only, by proving that the testator signed the instrument in question as his last will and testament, that he was of full age, and that the execution of the instrument was duly attested by two witnesses; and that after such proof the contestor had the right to assail the execution of the instrument by showing that the testator was of unsound mind that the will was unduly executed, that it was executed under duress, or was obtained by fraud, or upon any other ground of contest. At the conclusion of the evidence for the contestor, he held that...
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