Scampmorte v. Scampmorte

• Decision Date: 05 January 1962
• Docket Number: No. 19265,No. 2,19265,2
• Citation: 133 Ind.App. 276,179 N.E.2d 302
• 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 302

179 N.E.2d 302

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.

Jan. 5, 1962.

John C. Bashaw and Robert Shearer, Anderson, for appellant.

Johnson & Austin, Kelley, Arnold & Kelley, Conrad S. Arnkens, John D. Staggenburg, Vincent Kelley, Anderson, for appellees.

BIERLY, Judge.

This action was brought by appellant in the Madison Superior Court on petition to probate the lost will of the Frank Scampmorte, who died a resident of Madison County, Indiana, on the 18th day of April, 1957, leaving an estate of both real and personal property.

Appellees-defendants below put the cause at issue by filing objections to probate of said lost will, and affirmatively charging unsoundness of mind of decedent at the time of the alleged execution of said will, and that at said time decedent lacked testamentary capacity.

Trial was had by the court without the intervention of a jury.

At the trial the appellant, 'Little' Frank Scampmorte, introduced his evidence and rested; the appellees presented no evidence. Following final arguments, appellees moved for a directed verdict which was overruled.

The court found against appellant, and rendered consistent judgment thereon and that the decedent died intestate.

A motion for a new trial was timely filed by appellant asserting that the finding of the court is contrary to law, and error by the court in refusing to permit the witness, Helen Mabel Moss, to answer certain questions, citing questions, the objections thereto, if any, the ruling on objections, if any, and the answers to the questions. The motion for a new trial was overruled and this appeal followed.

Appellant in his assignment of errors, charged (1) 'The Court erred in overruling appellant's motion for a new trial.' (2) 'The Court committed error of law at the trial of said cause in excluding certain testimony of the witness, Helen Mabel Moss.'

The record discloses that the decedent was a resident of Madison County, Indiana, but while on vacation in the state of Florida, on November 14, 1953, he suffered a heart attack necessitating hospitalization.

Garnet Stottlemyer, a friend of fifteen years standing, and accompanied by a doctor, took Scampmorte by ambulance to the Sarasota Memorial Hospital in the late afternoon of the same day. Testimony was further to the effect that Scampmorte, alarmed by his illness, told Stottlemyer, 'I might not make it through the night,' and after indicating to Stottlemyer the disposition of his estate, he requested Stottlemyer to prepare the will. After preparing the will, Stottlemyer and Scampmorte both signed the instrument in the decedent's room. Stottlemyer afterward proceeded to get two nurses to come to Scampmorte's room who also signed the instrument.

Testimony further is to the effect that said instrument was placed with Mr. Stottlemyer, who retained possession thereof, in his Florida home, but, who, having inquired in Indiana of Mr. Scampmorte about the 'paper,' and being told to destroy it as '* * * other arrangements had been made,' upon returning to Florida, later ran across the 'paper,' and, recalling Mr. Scampmorte's request, sometime in September, 1954, put the reputed will in a waste basket. As heretofore stated, Frank, Scampmorte died April 18, 1957.

The alleged lost will as set forth in Appellant's brief follows:

'WILL'

'I given to my nephew, Frank, The Snack, The Toast, The Pearl Street Property and the money in both Loan Associations.

'I give all the rest of my property to my heirs.

Adelaide Hoostal /s/

Frank Scampmorte /s/

Helen Mabel Moss /s/

Garnet Stottlemyer /s/'

The testimony of Stottlemyer, the scrivener and witness to the will, testified that according to the executed will, decedent's property at 13th and Main, the property on Pendleton Avenue, the Pearl Street Property, and the money in the two banks were to go to Frank Scampmorte, the nephew and appellant; that the balance of decedent's estate was to go to the remaining heirs, appellees herein.

Failure of appellees to introduce any evidence, we need to give no consideration to their objections to probate of said will.

It appears to us that Point No. (2) in appellant's assignment of errors is mere surplusage since this matter is adequately covered in appellant's motion for a new trial.

We have presented to us for consideration the problem, the distillation of which, is whether the purported lost will of the decedent was legally executed.

It has been stated that:

' * * * Strictly speaking, there is no such thing as a substantially correctly executed will. Either the will meets the legislative requirements or it is void.' 2 Henry's Probate, Sixth Edition, § 3, p. 976. (Our emphasis.)

At the time of the execution of the alleged will of the decedent, the Probate Code provided ' § 7-201 No will, except a nuncupative will, shall affect any estate unless it [shall] be in writing, signed by the testator, or by someone in his presence with his consent, and attested and subscribed in his presence by two (2) or more competent witnesses; and if the witnesses are competent at the time of attesting, their subsequent incompetency shall not prevent the probate thereof.' Burns' Ind.Stat., Annotated, 1933. [2 R.S.1852, ch. 11, § 18, p. 308.]

The present statute relative to the execution reads as follows:

' § 6-503 * * * The execution of a will. other than a nuncupative will, must be by the signature of the testator and of at least two witnesses as follows:

'(a) The testator shall signify to the attesting witnesses that the instrument is his will and either

'(1) Himself sign, or

'(2) Acknowledge his signature already made, or

'(3) At his direction and in his presence have someone else sign his name for him, and

'(4) In any of the above cases the act must be done in the presence of two or more attesting witnesses.

'(b) The attesting witnesses must sign

'(1) In the presence of the testator, and

'(2) In the presence of each other.' [Acts 1953, ch. 112, § 503, p. 295.]

Section 6-505, Burns' Ind.Stat., 1953 Replacement, states the manner of legal execution of a will in accordance with the present code, to-wit:

'A will is legally executed if the manner of its execution complies with the law, in force either at the time of execution or at the time of the testator's death, of

'(1) This state, or

'(2) The place of execution, or

'(3) The domicile of the testator at the time of execution or at the time of his death.'

The determinable factor involved in the appeal revolves about the legal execution of the alleged lost will of Frank Scampmorte. It either was or was not legally executed. Resolving this point is the crux of this appeal. If it appears that the lost will failed by due execution, a consideration of other matters would be pointless.

The Probate Code of 1953 went into effect January 1, 1954, following the execution of the alleged will on the 14th day of November, 1953. Thus to determine the question of legal execution of said alleged will, consideration must be given to the statutes prior and subsequent to the effective date of the new Probate Code.

In compliance with § 6-505, Burns' Ind.Stat., 1953 Replacement, supra, of the present Probate Code of 1953, the execution of the purported will needs only to conform to the law in existence at either the date of the execution of said will or at the date of testator's death. If the purported will was not executed in accordance with the statutory requirements in effect on one of those two dates, then the will is void. Fletcher Trust Co. v. Morse (1951), 230 Ind. 44, 101 N.E.2d 658; Orth et al. v. Orth et al. (1895), 145 Ind. 184, 42 N.E. 277, 44 N.E. 17, 32 L.R.A. 298.

It is well settled, that in accordance with the Probate Code of 1953, and the law prior thereto, the execution of the will must be by the signature of the testator, (or having another sign his name at testator's request), and of at least two (2) subscribing witnesses. § 6-503 Burns' Ind.Stat., 1953 Replacement and 29 I.L.E. Wills § 71, p. 226 and cited cases.

According to the evidence, three persons allegedly were witnesses to the will of the decedent. Two witnesses, who have complied with the requirement of the statute are sufficient to show legal execution thereof.

Under the Probate Code of 1953, it is necessary that the testator signify that the instrument, which the witnesses are about to sign, is his will. § 6-503, Burns' Ind.Stat., 1953 Replacement, supra. The law prior to the effective date of the 1953 code did not require that the witnesses knew that the instrument to which they affixed their signatures was the will of the testator. Herring v. Watson (1914), 182 Ind. 374, 105 N.E. 900; Turner and Others v. Cook (1871), 36 Ind. 129; Brown and Others v. McAlister and Others (1870), 34 Ind. 375. Under the present code it seems that the testator must sign prior to witnesses but under the old code, it was held by this Court that the order of affixing signatures by the testator and witnesses was immaterial, '* * * where the signing by the testator and the witnesses was one continuous transaction, and all the signers were in the presence of each other the will is properly executed in that respect, in the absence of a statutory requirement to the contrary.' Harmening v. Harmening (1926), 84 Ind.App. 459, 150 N.E. 376.

It may be repetitious to state that under the present code the witnesses must attest the will in the presence of the testator and in the presence of one another. But under the prior law it has been held that it was not necessary that the subscribing witnesses sign at the same time and in the presence of each other. Johnson et al. v. Johnson (1886), 106 Ind. 475, 7 N.E. 201.

It has also been held prior to the present code that the attestation by the witnesses must be at the request of the testator, ...