Studabaker v. Faylor
| Decision Date | 09 January 1917 |
| Docket Number | No. 9822.,9822. |
| Citation | 66 Ind.App. 175,114 N.E. 772 |
| Parties | STUDABAKER v. FAYLOR et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wells County; C. W. Watkins, Special Judge.
Petition by David D. Studabaker against Peter Faylor and others for the appointment of petitioner as executor of the last will and testament of Catherine Faylor, deceased. Judgment for respondents, and petitioner appeals and moves for a writ of certiorari to complete the record. Certiorari denied, and judgment affirmed.Frank W. Gordon and George Mock, both of Bluffton, for appellant. Simmons & Dailey and Sturgis & Stine, all of Bluffton, for appellees.
On March 8, 1913, 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 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 co-parties 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 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 20 days after such will was duly admitted to probate that appellant filed a written application for letters testamentary and gave bond as required by section 2737, Burns 1914.
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 præcipe. 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 et al., No. 15607, relating to the probate of the will of Catherine 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. 15607 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 præcipe and has not omitted from the transcript a part of the record in this cause.
The præcipe is as follows:
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 had 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 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 ...
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- Studabaker v. Faylor
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State ex rel. Gentry v. O'Byrne
... ... And when preferences ... are created by statute, the court may, nevertheless, refuse ... to appoint one who is unqualified or unfit. Studabaker v ... Faylor, 1917, 66 Ind.App. 175, 114 N.E. 772. Where, ... however, the statute commands, and does not merely direct, ... that letters shall ... ...
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In re Stahl's Estate
...court, rely upon the case of Studabaker v. Faylor, 1917, 66 Ind.App. 175, 114 N.E. 772, and kindred cases of foreign jurisdictions. In the Studabaker case executor named in the will practiced a fraud on the testator subsequent to the execution of the testator's will, secured title to certai......