Thompson v. Turner
| Citation | 89 N.E. 314,173 Ind. 593 |
| Decision Date | 06 October 1909 |
| Docket Number | 21,340 |
| Parties | Thompson et al. v. Turner et al |
| Court | Supreme Court of Indiana |
Rehearing Denied March 10, 1910.
From Delaware Circuit Court; Joseph G. Leffler, Judge.
Action by Charles N. Turner and another against Adaline F. Thompson and others. From a judgment for plaintiffs, defendants appeal.
Reversed.
C. B Templer and Thompson & Thompson, for appellants.
George H. Koons and C. A. Taughinbaugh, for appellees.
Frank H. Turner died in Delaware county on June 18, 1907, leaving Amanda F., his widow, who was a childless second wife, and Charles N. Turner, a son by a former marriage, his only heirs at law. What purported to be the will of the decedent was admitted to probate by the Delaware Circuit Court on June 27 1907. By the terms of the instrument probated, there was bequeathed and devised to his wife, Amanda Turner, all that portion of his estate, real and personal, to which she was entitled under the laws of the State of Indiana as his surviving widow; to his mother, Cynthia L. Turner, all his property, real and personal, not taken by his widow, Amanda; and, in the event said Cynthia should die before the testator, all that portion of the estate bequeathed to her should go to his sister, Adeline F. Thompson. In due time, Amanda, the widow, filed her election to take her portion of the testator's estate under the law and not under the will. After the filing of said election she joined with her stepson, Charles N. Turner, in a suit to contest the validity of said will, making the administrator and beneficiaries parties defendant.
The complaint, alleging unsoundness of mind and undue execution as causes for contest, was an ordinary complaint in such cases, setting forth the terms of the will, the names of the beneficiaries, and the interest devised and bequeathed to each.
The separate demurrer of each of the defendants to the complaint, for insufficiency of facts, was overruled, which ruling, under the view we have taken of the case, presents the only questions we are called upon to decide.
The demurrers present two controverted propositions: (1) Has a widow the right to join an heir in the prosecution of a suit to revoke the probate of her husband's will, which expressly provides that she shall have by its provisions all that portion of the estate to which she is entitled by virtue of the statutes of the state? (2) Is an action by one who has a right to bring it made demurrable for insufficiency of facts, by being joined by another who is shown by the complaint to have no interest in the subject-matter?
First: Our statute concerning wills provides: "Any person may contest the validity of any will, or resist 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. But notwithstanding the broad language of the statute, it is held by this court that the language here employed must be limited by § 251 Burns 1908, § 251 R. S. 1881, which provides: "Every action must be prosecuted in the name of the real party in interest," except as to the persons specially named in the statute.
Back of this rule of construction is another rule of the court, referred to in the case of Chicago, etc., R. Co. v. Summers (1887), 113 Ind. 10, 15, 3 Am. St. 616, 14 N.E. 733, in these words: "It has often been held by this court, and correctly so, we think, that the modes of procedure and rules of practice prescribed by our civil code in civil actions are all applicable to a special statutory proceeding for the enforcement of private rights." Adhering to this practice, it has uniformly been held in this State that the words "any person may contest the validity of any will" means any person interested in the will, or who will be affected by its probate. Niederhaus v. Heldt (1867), 27 Ind. 480; Schmidt v. Bomersbach (1878), 64 Ind. 53, 55; Kinnaman v. Kinnaman (1880), 71 Ind. 417, 422; Scott v. Farman (1883), 89 Ind. 580; McDonald v. McDonald (1895), 142 Ind. 55, 66, 41 N.E. 336; Campbell v. Fichter (1907), 168 Ind. 645, 647, 81 N.E. 661.
It will be observed that a literal construction of § 3154, supra, would permit a stranger to a will to maintain an action for its contest, and thus put it in the power of a mischief-maker to annul a will that was entirely satisfactory to the heirs and beneficiaries. This is absurd. So it should be considered settled that, under our statutes, none but persons who have a subsisting property interest of some kind, affected by the will, can maintain an action for its overthrow.
Second: Does the widow, plaintiff in this case, exhibit in the complaint an actionable interest in the subject-matter of the action? The complaint contains no copy of the will, and the averments concerning its contents affecting the widow are as follows:
The instrument attempts to confer upon the widow exactly the interest bestowed by the statute. It expressly limits her portion to that granted a surviving widow by the laws of the State, in the absence of a will. If the will stands, she will take precisely what she would receive by the statutes if the will should fail.
The rule applicable to such a case, as laid down by Chancellor Kent (4 Kent's Comm., *506), and quoted approvingly in ...
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