Scampmorte v. Scampmorte, 19265

• Decision Date: 20 February 1962
• Docket Number: No. 19265,No. 2,19265,2
• Citation: 133 Ind.App. 276,180 N.E.2d 385
• Parties: Frank SCAMPMORTE, Appellant, v. Joseph SCAMPMORTE, Administrator of the Estate of Frank Scampmorte, Deceased, Joseph Scampmorte et al., Appellees
• Court: Indiana Appellate Court

Page 385

180 N.E.2d 385

133 Ind.App. 276

Frank SCAMPMORTE, Appellant, v. Joseph SCAMPMORTE, Administrator of the Estate of Frank Scampmorte, Deceased, Joseph Scampmorte et al., Appellees.

No. 19265.

Appellate Court of Indiana, Division No. 2.

Feb. 20, 1962.

Transfer Denied April 18, 1962.

Joan C. Bashaw, Robert L. Shearer, Anderson, for appellant.

Johnson & Austin, Kelley, Arnold & Kelley, Anderson, Vincent Kelley, Robert L. Austin, Conrad S. Arnkens, Jack Staggenburg, Anderson, for appellees.

BIERLY, Judge.

Appellant filed no brief in support of his Petition for Rehearing, nor have appellees filed any objection or brief to said petition for rehearing.

Appellant charges error by the court in its opinion and decision:

'1. In holding that there must be testimony as to the execution of a will by at least two (2) subscribing witnesses in order to admit a will to probate, thereby contravening a ruling precedent of the Supreme Court to-wit, the case of Hayes v. West, (1871) 37 Ind. 21, which holds that only the testimony of one (1) subscribing witness is necessary to establish a will when offered for probate, although two (2) witnesses are required for a valid execution.'

It appears that appellant has taken words out of context. In Hayes et al. v. West et al. (1871), 37 Ind. 21, the court said:

'If one witness, however, knows that he and the other witness or witnesses subscribed the will, as such, in the presence of the testator, and at his request, there seems to us to be no legal necessity for calling any more. One witness is sufficient to establish a will when offered for probate. 2 G. & H. 557, sec. 27.' (Our emphasis).

It certainly is elementary that 'only the testimony of one (1) subscribing witness is necessary to establish a will when offered for probate,' provided, that said subscribing witness can satisfy the probate court by knowledge that two (2) competent subscribing witnesses 'subscribed the will, as such, in the presence of the testator and at his request.' (Our emphasis). Hayes v. West, supra, page 26.

The record does not disclose nor does the opinion hold that Garnet Stottlemyer testified that two (2) witnesses subscribed to the will of the testator at his request. (Our emphasis).

The second error of the court as claimed by the appellant in his Petition for Rehearing is in holding that:

'The test in the instant case is not whether the witness saw the signature but whether the testator acknowledged the signature as his own, for the reason that under the law of execution in effect at the time the will was executed, it was merely...