Moll v. Goedeke
| Decision Date | 15 February 1940 |
| Docket Number | No. 16210.,16210. |
| Citation | 25 N.E.2d 258,107 Ind.App. 446 |
| Parties | MOLL et al. v. GOEDEKE et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Vanderburgh County; A. Dale Eby, Special Judge.
Will contest proceeding by Elfrieda Moll and others against Estella M. Goedeke, individually, and as special administratrix of the estate of Frederick W. Goedeke. From an adverse judgment, contestants appeal.
Reversed with instructions.
Robert D. Markel, of Evansville, for appellants.
Edgar Durre, of Evansville, for appellees.
On June 7, 1937, in the June term of the Vanderburgh Probate Court, appellants filed their verified objections to the probate of an instrument purporting to be the last will and testament of Frederick W. Goedeke, who died on April 26, 1937. The objections alleged, among other things, “that a pretended will of said decedent, bearing date of the 14th day of November, 1934, has been, or is about to be presented to this court, or to the clerk of this court, for probate, as his last will and testament; that said pretended will is voluminous and involved and these Objectors and Petitioners have not had opportunity to interpret or construe the same or the meaning and force thereof but that these Objectors and Petitioners and the said widow are all named therein as beneficiaries”; that at the time this pretended will purports to have been executed the decedent was incapable of making a will; that the pretended will was unduly executed; that the pretended will was executed under duress; and that such pretended will and the execution thereof were obtained by fraud. Appellants prayed that the probate thereof be continued until the next and succeeding term of court.
On June 7, 1938, appellee Estella M. Goedeke was appointed special administratrix by the court, pending the controversy over the probate of the will.
On September 9, 1937, during the September term of the Vanderburgh Probate Court, appellants filed their formal complaint to resist the probate of the pretended will of the decedent, and alleged, among other things, “that a pretended last will and testament of the said Frederick W. Goedeke has been presented to this court or to the clerk of this court for probate,” and charged the invalidity of the will upon the following grounds: (1) Unsoundness of mind of the testator; (2) undue execution; (3) duress; and (4) fraud. Appellees Estella M. Goedeke, in her individual capacity, and Estella M. Goedeke, in her representative capacity as “Special Administratrix of the Estate of Frederick W. Goedeke,” were made party defendants to the complaint and were each duly served with process of service. The defendants, who are appellees here, appeared to the action by counsel, and, after having unsuccessfully moved to make the complaint more specific and to require the plaintiffs to state the facts necessary to sustain alleged conclusions, filed, on December 7, 1937, a verified motion, designated as a “Motion to Dismiss Action,” in which they alleged that the court did not have jurisdiction of the cause for the reasons: That the persons named as beneficiaries in a will offered for probate had not been made parties to the action during the next and succeeding term; that by the terms of the will the wife of the testator was made and nominated executrix of the estate, and certain persons, to wit, Estella M. Goedeke, Elfrieda Moll, Elsie Angel, Clara Schlegel, and Walter Moll, were made trustees of the trusts created therein; that neither the executrix of the will nor the trustees therein named were made parties to the action within the time prescribed by law, nor are such beneficiaries, executrix, and trustees now parties to the action; that the plaintiffs were furnished a copy of the will prior to the offer of the probate thereof and knew those named as executrix and trustees in the will; and that the executrix and trustees so named were necessary parties to the action. A copy of an instrument purporting to be the last will of the decedent and bearing date of November 14, 1934, was attached to and made a part of the pleading.
The testator, by the terms of the instrument, appointed his wife, Estella M. Goedeke, and his daughter, Elfrieda Moll, trustees thereunder for the period of any trusts therein created, provided, however, that if either of them should die or refuse or be unable to act, his daughter Elsie Angel shall be a trustee and serve in the place of the one who dies; that in the event Elsie Angel does not so act, or in case neither his wife nor his daughter Elfrieda Moll so acts, then his daughter Clara Schlegel shall be and act as one of the trustees. The will further provided that there shall always be two trustees, as long as two of the four persons named are living and able to act; that if, for any reason, only one of the four persons named shall be willing and able to act, then such one person shall be the sole trustee; that if neither his wife nor any of his three daughters can or will act as such trustee, then his son-in-law, Walter Moll, shall act. By certain items of his will, he bequeathed and devised unto the trustees property consisting of both real estate and personal property in trust, upon certain terms and conditions by him enumerated and set forth therein. By item No. 7 he nominated and appointed his wife, Estella M. Goedeke, executrix of his will.
The motion to dismiss was submitted to the court upon argument of counsel and without the introduction of any evidence. The court, after taking the matter under advisement, on the 11th of February, 1938, sustained the motion and entered a judgment dismissing the cause of action.
Appellants timely reserved an exception and prosecuted this appeal, assigning as error the sustaining of appellees' motion to dismiss their cause of action.
In support of their alleged error, appellants contend that appellees, by their motion to dismiss, attempted to challenge the jurisdiction of the court by alleging facts not contained in the complaint or otherwise appearing of record, to wit: That certain persons named in the instrument purporting to be the last will and testament of Frederick W. Goedeke had not been made parties to the action; and that under such circumstances the motion to dismiss the action can not perform the office of a demurrer or a plea in abatement.
[1] This motion, we think, was not authorized by any statute or rule of practice obtaining in the courts of this state, and was, therefore, improper. Appellees evidently intended by this motion to question the jurisdiction of the court below to proceed without making certain parties designated in the motion parties to the action. Aside from our statute, the rules of good pleading require that the appellees should present the question of defect of parties either by demurrer or by plea in abatement, depending, of course, upon whether the defect of parties affirmatively appears upon the face of the complaint. In treating the pleading as a motion to dismiss, rather than as a plea in abatement, the trial court took away the right of appellants to amend their complaint and make additional parties in the event the ruling was adverse to them. Ludwick v. Beckamire, 1860, 15 Ind. 198;Bass Foundry & Machine Works v. Board of Com'rs of Parke County et al., 1888, 115 Ind. 234, 17 N.E. 593;Moore v. Harmon, 1895, 142 Ind. 555, 41 N.E. 599;Western Union Tel. Co. v. State ex rel., 1905, 165 Ind. 492, 76 N.E. 100, 3 L.R.A.,N.S., 153, 6 Ann.Cas. 880;Danville Trust Co. v. Barnett, 1916, 184 Ind. 696, 111 N.E. 429.
[2] In actions to contest the validity of wills or resist their probate, the rules governing the trial of civil actions under the code are applicable, and pleadings, demurrers, motions, answers, pleas in abatement, statute of limitations, estoppel, etc., are sanctioned in such actions by the courts of this state.
A more difficult question is presented in determining who should be made parties to an action to contest or resist the probate of a will within the meaning of the statute.
Appellants insist that all of the persons mentioned in the alleged will attached to appellees' motion to dismiss have been made parties to the action in their individual names, either as plaintiffs or defendants, and that no further identification as executrix or trustees is necessary to meet the requirements of the statute.
[3] In this state actions to contest the validity and to resist or set aside the probate of an alleged will are purely statutory; that is, they can only be brought and successfully maintained in the manner and within the limitations prescribed by the statute.
Section 7-504 Burns' 1933, Sec. 3395 Baldwin's 1934, provides: “Any person may contest the validity of any will or resist the probate thereof, at any time within one (1) year after the same has been offered for probate, by filing in the court having probate jurisdiction in the county where the testator died or where any part of his estate is, his allegations in writing, verified by his affidavit, setting forth the unsoundness of mind of the testator, the undue execution...
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