State ex rel. State Bank of Greentown v. Howard Circuit Court, 29651
| Decision Date | 01 July 1958 |
| Docket Number | No. 29651,29651 |
| Citation | 238 Ind. 448,151 N.E.2d 515 |
| Parties | STATE of Indiana on the Relation of STATE BANK OF GREENTOWN, Greentown, Indiana, Executor of the Last Will and Testament of Effie B. Cullins, Deceased, Petitioner, v. HOWARD CIRCUIT COURT of Indiana, Merton Stanley, as Judge of the Howard Circuit Court of Indiana, Georgie Voorhis Harding, Zola Voorhis Collins, Respondents. |
| Court | Indiana Supreme Court |
Kenneth E. Shockley, Kokomo, for petitioner.
Marshall, Hillis & Hillis, Kokomo, for respondents.
This is an original action to prohibit the Howard Circuit Court from exercising further jurisdiction in regard to Cause No. 30507 pending in that court. The facts are as follows:
In Howard County both the Circuit and the Superior Courts have concurrent probate jurisdiction.
Pursuant to an agreement made between Howard C. Cullins and Effie B. Cullins, brother and sister, they executed a joint will on February 9, 1939. This will provided that the survivor should have a life estate in the deceased's property and made provision for disposition of the property to the same beneficiaries upon the death of the survivor. Howard C. Cullins died in 1943 and this joint will was offered for probate in the Howard Circuit Court by Effie B. Cullins, who qualified as executrix and settled the estate.
Thereafter Effie B. Cullins, 1952, executed a purported will in derogation of the terms of the 1939 will. Also, in derogation of the agreement of the will, she executed two deeds attempting to convey certain real estate which she and her brother Howard C. Cullins had owned.
Effie B. Cullins died a resident of Howard County in 1956. On application letters of administration were issued and her estate was opened for probate in the Howard Superior Court, with said subsequent will annexed. The State Bank of Greentown was appointed executor of the estate.
On November 5, 1956, respondents Georgie Voorhis Harding and Zola Voorhis Collins filed an action in the Howard Circuit Court seeking to set aside the probate of said separate and subsequent will pending in the Howard Superior Court, and to substitute therefor the terms of the previous 1939 will executed by the decedent and her brother, Howard C. Cullins, jointly. Respondents also asked that the court declare a trust in real estate conveyed by Effie B. Cullins in derogation for her joint will.
The State Bank of Greentown, executor, filed its motion in the Howard Circuit Court attacking the jurisdiction of that court on the ground that the Howard Superior Court had already acquired jurisdiction over the estate of Effie B. Cullins and that this jurisdiction could not collaterally be challenged in the Howard Circuit Court. The motion was denied, and upon application to this court a temporary writ of prohibition was issued.
A decision in this case is grounded upon the following basic principles. One: Where two courts possess concurrent and complete jurisdiction over a subject-matter, the one before which the proceedings are first entitled acquires complete jurisdiction over the entire subject-matter, which continues to the end of the proceedings. 21 C.J.S. Courts § 492, p. 745; State ex rel. Wilson v. Howard Circuit Court, Ind. 1957, 145 N.E.2d 4; State ex rel. Tuell v. Shelby Circuit Court, 1939, 216 Ind. 231, 23 N.E.2d 425, 134 A.L.R. 1238; State ex rel. v. Madison Circuit Court 1923, 193 Ind. 20, 138 N.E. 762; State ex rel. Ferger v. Circuit Ct., 1949, 227 Ind. 212, 84 N.E.2d 585.
Two: Probate proceedings being in rem, jurisdiction attaches to the court before which such a petition is first filed.
'* * * The proceeding (administration and settlement of decedent's estate) shall be deemed commenced by the...
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