Studabaker v. Faylor
| Decision Date | 09 January 1917 |
| Docket Number | 9,822 |
| Citation | 114 N.E. 772,66 Ind.App. 175 |
| Parties | STUDABAKER v. FAYLOR ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 19, 1917. Transfer denied December 12 1917.
From Wells Circuit Court; C. W. Watkins, Special Judge.
Petition by David D. Studabaker to be appointed executor of the will of Catherine Faylor, deceased, and Peter Faylor and others file objections. From the judgment rendered, the petitioner appeals.
Affirmed.
Frank W. Gordon and George Mock, for appellant.
Simmons & Dailey and Sturgis & Stine, for appellees.
On March 8, 1913, the appellant, David Studabaker, made written application to the Wells Circuit Court to be appointed executor of the will of Catherine Faylor, deceased, in which he alleged that he had been named executor by the will of the decedent, and that pending certain litigation an administrator had been appointed who had charge of the personal property of the estate. Appellee Peter Faylor filed written objections to the appointment of appellant as executor, and appellant moved to strike out such objections, and also filed a motion to require said Faylor to make his objections more specific. Each of said motions was overruled by the court, and appellant filed a demurrer to the objections of Faylor for alleged insufficiency of facts stated in such objections to defeat his appointment and the confirmation of his letters testamentary. The court overruled the demurrer, and appellant refused to plead further, and elected to stand upon such rulings. Whereupon the court rendered judgment that appellant take nothing by his application, and that Peter Faylor and his coparties recover costs. From this judgment, rendered on May 27, 1916, appellant appealed, and has assigned as error the aforesaid rulings of the court.
The transcript was filed in this court on July 19, 1916, and the cause was submitted on August 18, 1916. Appellee's briefs were filed on November 10, 1916, in which they contend the appeal should be dismissed: (1) Because the record affirmatively shows that appellant has no appealable interest in the judgment for the reason that after the filing of appellant's application for letters the order of the court probating the will of the decedent was reversed by the Supreme Court, on appeal therefrom, and the record does not show that the will was thereafter probated; (2) the record does not show any order probating the will of decedent, nor that, within twenty days after such will was duly admitted to probate, appellant filed a written application for letters testamentary and gave bond as required by § 2737 Burns 1914, § 2222 R. S. 1881.
On December 4, 1916, appellant filed a petition for a writ of certiorari, in which it is in substance alleged that the transcript in this appeal is incomplete and incorrect because the clerk omitted certain matters therefrom called for by appellant's praecipe. The application for such writ then sets out "Pleas and proceedings before Hon. Jacob F. Denney, sole judge of the Fifty-eighth Judicial Circuit of the State of Indiana, and ex officio Judge of the Jay Circuit Court" at a term in March, 1916, in the case of Thomas Faylor et al. v. David D. Studabaker, No. 15,607, relating to the probate of the will of Catharine Faylor, deceased. In said proceedings it is shown that the court adjudged and decreed that said will be admitted to probate, and ordered the clerk of the Wells Circuit Court to record the same and attach thereto a certificate stating that it has been admitted to probate, and also provided that: "The clerk of the Jay Circuit Court is hereby directed to make and transmit to the clerk of said Wells Circuit Court a true and complete transcript of this order and decree under his hand and the seal of this court."
Appellees are resisting the granting of the writ of certiorari because the application shows upon its face that the omitted matter called for is a part of the record of the Jay Circuit Court in cause No. 15,607 of that court; that it does not appear that the alleged omitted matter is a part of the record of the proceedings in this cause; that the clerk has not disobeyed, but has followed the praecipe and has not omitted from the transcript a part of the record in this cause.
The praecipe is as follows:
vs. Praecipe for Transcript.
Peter Faylor, et al.
To the Clerk of the Wells Circuit Court:
"The Clerk will prepare and certify a full, true and complete transcript of the entire proceedings, papers on file and judgment in the above entitled cause to be used on appeal to the Supreme Court of Indiana, except the following papers, to wit:--"
The parts excepted are not material to the questions we are now called upon to decide.
Appellant in his brief in support of his petition for the writ of certiorari, says:
An examination of the transcript shows that on February 19 1913, the will of decedent was ordered probated by the Wells Circuit Court, and that an appeal was prayed and granted to the Supreme Court from such order. On March 8, 1913, appellant made his application for appointment as executor of the will of decedent, Catherine Faylor, in which he alleged among other things that she died testate on July 8, 1902, and left a personal estate of $ 500 and some real estate; that he was named sole executor of her will; that the same was offered for probate soon after her death, but on account of objections was not probated until February 19, 1913, when the same was by order of the Wells Circuit Court duly admitted to probate; that pending the objections to the probate of the will an administrator was appointed to take charge of the personal estate and he has had charge thereof during all said time. The application also contains formal allegations to show his competency and right to appointment. On March 10, 1913, Peter Faylor filed objections on behalf of himself and other legatees, to appellant's appointment, in which he alleged that he was a legatee and devisee under the will of Catherine Faylor, deceased; that an administrator had been duly appointed and had qualified and was acting as such; that after the execution of said will, on April 1, 1901, appellant by fraud and undue influence and without any consideration paid by him, obtained from Catherine Faylor a deed for 126 acres of real estate of the value of $ 12,000; that immediately after the death of said Catharine Faylor he entered into the possession thereof as his own; that the heirs and legatees of decedent began suit to recover said real estate and in 1909 obtained a judgment in their favor against appellant, that he had no right, title, or interest in said real estate, which judgment was duly affirmed by the Appellate Court of this state, and on application for a transfer the same was denied by the Supreme Court; that appellant has committed waste upon said real estate and appropriated the rents and profits thereof from 1901 to 1913; that appellant is indebted to the estate and the beneficiaries of said will in a large amount; that he is an...
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