Steinkuehler v. Wempner

• Decision Date: 28 May 1907
• Docket Number: 20,895
• Citation: 81 N.E. 482,169 Ind. 154
• Parties: Steinkuehler et al. v. Wempner et al
• Court: Indiana Supreme Court

81 N.E. 482

169 Ind. 154

Steinkuehler et al. v. Wempner et al

No. 20,895

Supreme Court of Indiana

May 28, 1907

Rehearing Denied October 17, 1907.

From Marion Circuit Court (13,134); Henry Clay Allen, Judge.

Objections by Minnie Steinkuehler and others to the probate of a will offered by Sophie Wempner and others. From a judgment admitting such will to probate, objectors appeal.

Reversed.

Chambers Pickens, Moores & Davidson, for appellants.

Charles E. Cox and James W. Harper, for appellees.

OPINION

Montgomery, J.

This proceeding was begun upon the filing by appellants in writing of verified objections to the admission to probate of the will of Wilhelmina Albertsmeyer, in accordance with the provisions of § 3153 Burns 1908, § 2595 R. S. 1881. These written objections charged that the instrument purporting to be the last will and testament of Wilhelmina Albertsmeyer, deceased, dated April 2, 1902, and the codicil thereto dated December 16, 1903, were not the last will and testament and codicil, respectively, of the decedent, for the reasons: (1) That decedent was of unsound mind and incapable of making a will at the time the pretended will purports to have been executed; (2) that decedent was of unsound mind and incapable of making a will at the time the codicil purports to have been executed; (3) that the will and codicil were each unduly executed; (4) that the pretended codicil was never executed by decedent, and that the signature thereto was not her own, nor made by her, nor by any one at her request, nor with her knowledge or consent; (5) that the will and codicil were executed under duress; (6) that the will was obtained by fraud; (7) that the codicil was procured by fraud.

Appellees answered these charges by general denial, and the cause was submitted to a jury for trial. At the conclusion of appellants' evidence the court directed the jury to return a verdict in favor of appellees. Appellants' motion for a new trial was overruled, and judgment rendered to the effect that "the will and codicil of Wilhelmina Albertsmeyer, mentioned in the complaint, are valid, and her will and codicil, and that the same be admitted to probate in this court."

The assignment of errors charges the court with error in overruling appellants' motion for a new trial.

Appellants applied for a new trial upon the grounds that the court erred in holding that the objectors to the will had the burden of the issues raised by the pleadings, in requiring them to make the opening statement to the jury, in directing a verdict in favor of appellees, and that the verdict is not sustained by sufficient evidence and is contrary to law.

The first question with which we are confronted is: Who had the burden of the issues? It is well settled in this State that when an attack is made upon a will duly admitted to probate, the burden of establishing its invalidity rests upon the plaintiffs or contestants. Wait v. Westfall (1904), 161 Ind. 648, 665, 68 N.E. 271; Roller v. Kling (1898), 150 Ind. 159, 49 N.E. 948; Teegarden v. Lewis (1896), 145 Ind. 98, 40 N.E. 1047; Blough v. Parry (1896), 144 Ind. 463, 40 N.E. 70; Turner v. Cook (1871), 36 Ind. 129, 137; Moore v. Allen (1854), 5 Ind. 521.

The following sections, quoted from our statutes upon the subject of wills, are pertinent to the question submitted: "All persons, except infants and persons of unsound mind, may devise, by last will and testament, any interest, descendible to their heirs, which they may have in any lands, tenements, and hereditaments, or in any personal property, to any person or corporation capable of holding the same." § 3112 Burns 1908, § 2556 R. S. 1881.

"No will except a nuncupative will shall affect any estate, unless it be in writing, signed by the testator, or by some one in his presence with his consent, and attested and subscribed in his presence by two or more competent witnesses; and if the witnesses are competent at the time of attesting, their subsequent incompetency shall not prevent the probate thereof." § 3132 Burns 1908, § 2576 R. S. 1881.

"Before a written will shall be admitted to probate, or letters testamentary or of administration, with the will annexed, shall be granted thereon, such will shall be proven by one or more of the subscribing witnesses, or, if they be dead, out of the State, or have become incompetent from any cause since attesting such will, then by proof of the handwriting of the testator or of the subscribing witnesses thereto." § 3141 Burns 1908, § 2584 R. S. 1881.

"If it shall appear, from the proof taken, that the will was duly executed, and that the testator at the time of executing the same was competent to devise his property and not under coercion, such testimony shall be written down, subscribed by the witness examined, and attested by said clerk with his signature and seal of office; and the will, with such testimony and attestation, shall be recorded by such clerk in a book kept for that purpose, and certified by him to be a complete record." § 3145 Burns 1908, § 2587 R. S. 1881.

"Every will so proven shall have a certificate indorsed thereon or attached thereto, substantially stating that it has been admitted to probate; that a complete record of it and the testimony of the witnesses has been duly recorded; the names of such witnesses, and the title and page of the book in which it is recorded; which certificate shall be attested by the signature of the clerk of such court and his official seal." § 3146 Burns 1908, § 2588 R. S. 1881.

"Every will so authenticated, or a complete copy of the record thereof, certified by the clerk in whose custody it may be, and attested by his signature and official seal, may be read in evidence without further proof." § 3147 Burns 1908, § 2589 R. S. 1881.

The statutes authorizing proceedings to resist the probate or to contest the validity of a will read as follows: "If, prior to the admission of any will to probate before the clerk of the circuit court, objection thereto, in writing, verified by his affidavit, alleging that the same is not made for vexation or delay, be filed by any person with such clerk, he shall continue the same until the succeeding term of court, when, if the person contesting such will fail to resist the probate thereof, the judge of such court may admit such will to probate; but if such objection be made before such court, reasonable time shall be allowed to the party making the same to resist the probate of such will." § 3153 Burns 1908, § 2595 R. S. 1881.

"Any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the circuit court of the county where the testator died, or where any part of his estate is, his allegation, in writing, verified by his affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress or was obtained by fraud, or any other valid objection to its validity or the probate thereof; and the executor and all other persons beneficially interested therein shall be made defendants thereto." § 3154 Burns 1908, § 2596 R. S. 1881.

The admission of a will to probate in a case where the court has jurisdiction is a judicial act, and, like other valid judgments, cannot be collaterally impeached for any error or irregularity, but is binding until reversed or set aside according to law. Winslow v. Donnelly (1889), 119 Ind. 565, 22 N.E. 12.

If the order of probate is not vacated in an appropriate proceeding brought for that purpose, within three years from the date the will is offered for probate, it becomes unimpeachable and conclusive, except as to infants and persons absent from the State or of unsound mind. Putt v. Putt (1897), 149 Ind. 30, 48 N.E. 356; Bartlett v. Manor (1897), 146 Ind. 621, 45 N.E. 1060; Evansville Ice, etc., Co. v. Winsor (1897), 148 Ind. 682, 48 N.E. 592; Potts v. Felton (1880), 70 Ind. 166; Blanchard v. Wilbur (1899), 153 Ind. 387, 55 N.E. 99. The force and effect accorded to the judgment or order of probate is ample justification for the holdings of this court, that, after being duly probated, a will can be overthrown only by an affirmative showing of its invalidity. It is not possible to reconcile the decisions and rules of practice in the courts of the several states with regard to the burden of proof in proceedings to contest and to resist the probate of wills. Some of the differences are attributable to the peculiar language of local statutes, while others seem to be due to an apparent confounding of the terms "burden of proof," "presumptions of law," and "weight of evidence."

It is not deemed expedient to enter upon an historical review of the subject of wills, or a discussion of the comparative antiquity of the right to transmit property by descent to heirs, and by testamentary provisions. It will suffice to state that, in our opinion, the general law governing the descent and distribution of property upon the death of the owner ought to prevail until some other special disposition shall be shown to have been validly made. This proceeding was primarily instituted by the act of the beneficiaries seeking to have the alleged will of the decedent proved and established as her last will and testament. Appellants objected to this application, and challenged the validity of the alleged will upon substantially every statutory ground. It is quite generally agreed that the burden of proving the due execution and attestation of a will is upon the proponents. Morell v. Morell (1901), 157 Ind. 179, 60 N.E. 1092; Miller v. Coulter (1901), 156 Ind. 290, 59 N.E. 853; In re Mackay's Will (1888), 110 N.Y. 611, 18 N.E. 433, 1 L. R. A. 491 6 Am....