Runkle v. Gates
| Decision Date | 23 November 1858 |
| Citation | 11 Ind. 79 |
| Parties | Runkle and Others v. Gates and Others |
| Court | Indiana Supreme Court |
From the Tippecanoe Circuit Court.
The judgment is affirmed with costs.
W. C Wilson and J. M. La Rue, for appellants.
R. C Gregory and J. Pettit, for appellees.
Davison J.
Peter John, Michael, and Jane Runkle sued Mary E. Runkle and others, for partition. The complaint charges that one John Runkle died in the year 1846, leaving, in addition to the plaintiffs, Abram, Mary, Patsy, Manuel, Lewis, Diana, and James Runkle, his children and heirs at law; that James Runkle has since died, leaving Mary E. Runkle, his only child, and Martha Runkle, his widow, who is now intermarried with Samuel Gates; and that John Runkle died intestate, leaving, however, a pretended will, which, on its face, purports to devise all his real estate (describing it) to his son, James Runkle. It is averred that the will was procured by the fraud of James Runkle; that shortly after its execution, James obtained possession of it surreptitiously; and that John Runkle, having demanded the will for the purpose of cancelling it, was told by James that it was already burned and destroyed, which supposed destruction John Runkle expressly ratified. The relief prayed is, that the paper purporting to be the will of John Runkle, be held as void, and that partition of the lands described, be made, &c.
Samuel Gates, Martha Gates, and Mary E. Runkle, answered the complaint. The other defendants were defaulted. The answer alleges that the lands in question were owned in severalty by James Runkle, at the time of his death; that he held the same in fee simple, under the last will of John Runkle, which was not, as alleged, procured by fraud, but was and is the will of John Runkle, and as such was duly admitted to probate; that James Runkle, the devisee, until his death held undisturbed possession under the will, and upon his death, the whole title descended to Mary E. Runkle, subject, only, to a dower right in her mother.
Reply in denial of the answer.
The issue thus formed was submitted to a jury, and there was a verdict for the defendants who answered, upon which the Court, having refused a new trial, rendered judgment, &c.
The will in contest bears date August the 9th, 1845. It is duly signed and sealed by John Runkle, and attested, in due form, by two witnesses. John Runkle lived about one year after the execution of the will, most of the time in good health. He was sick at the time it was executed, but recovered in a few days. The following is one of its provisions: "I devise to my son James Runkle, all my real estate on which I now live, to have possession of two-thirds of it at my death, and all of it at the death of my wife."
Defendants, at the proper time, moved to suppress a portion of the deposition of one Joseph Oiler, which had been taken by the plaintiffs, filed in the cause, and duly published. The portion to which the motion referred is as follows: "The fall before John Runkle died, I [witness] was helping him thrash wheat. John Runkle and his son, James, got into a dispute about the work, and the old man told him (James) to leave; that he would not have him about him, as he would not do any thing to suit him. The old man said to James, "you are carrying my will around with you in your pocket, and I do not want you about me." And James said he hadn't the will for he had burnt it. The old man then said, if he had burnt the will, he was satisfied; that he did not want any will, as the law of Indiana was will enough for him. The motion to suppress was sustained.
During the trial, the plaintiffs offered to prove, by three witnesses, that John Runkle, in their presence, frequently demanded of James Runkle the paper purporting to be his (John's) will, telling James that he had stolen it; that he (John) wanted to destroy it, as he did not intend that that paper should be his will, and that James, upon the occasion of the several demands, admitted that he had had the will in his possession, but stated that he had burnt it, and that it no longer existed; to which statements John Runkle replied that he was glad that it was destroyed; that he intended to have destroyed it if he had got it. Again; the plaintiffs offered to prove "that after the death of John Runkle, and before the probate of the will, James Runkle stated that he had had the will; that he had had it all the while, and fooled the old man; and that he, John Runkle, had died thinking it was destroyed." And further, they offered to prove, "that some six or eight days after the execution of the will, and immediately after John Runkle had recovered from his sickness, he said the instrument he had executed was not his will, and if he had been in full possession of his reasoning faculties he would not have executed the same." All the above offers were refused by the Court--exceptions were taken by the plaintiffs--and the refusals to admit the proposed evidence are assigned for error.
Was the declaration of John Runkle, made six or eight days after the execution of the will, admissible in evidence?
It has been ruled that the statements of a testator, at the time of making a will, and afterwards, if so near as to be part of the res gestae, are admissible to show fraud in obtaining the will. But not declarations at any distance of time after the will has been executed--especially when the will has been in the testator's possession....
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