Wait v. Westfall

• Decision Date: 07 October 1903
• Docket Number: 19,902
• Citation: 68 N.E. 271,161 Ind. 648
• Parties: Wait et al v. Westfall
• Court: Indiana Supreme Court

68 N.E. 271

161 Ind. 648

Wait et al v. Westfall

No. 19,902

Supreme Court of Indiana

October 7, 1903

Rehearing Denied January 8, 1904.

From Marion Circuit Court (10,150); H. C. Allen, Judge.

Suit by Harriet Westfall against Joseph Wait and others. From a judgment for plaintiff, defendants appeal.

Reversed.

Samuel Ashby and L. J. Kirkpatrick, for appellants.

W. V Rooker, for appellee.

OPINION

Hadley, J.

On September 30, 1886, Clark Wait had living his childless second wife, Nancy, and three children of a former marriage namely, Joseph Wait, Martha Offenbacker, and Minerva Dotteror. The three children were married and had families of their own. A son, William, had deceased, leaving a widow and one child, Harriet Westfall, surviving him. He was also the owner of personal property and two tracts of real estate of eighty acres each. On the date above mentioned Wait executed his will, by which he bequeathed to his wife, Nancy, a life estate in the home eighty, with remainder over in fee to his daughter Martha Offenbacker, and to his son Joseph Wait the rents and profits of the other eighty-acre tract for and during the life of his wife, Nancy, with remainder over in fee to his daughter Minerva Dotteror. The fifth item of his will is as follows: "I give and devise to my son Joseph Wait, in addition to the rents named above, all my personal property, not taken by the widow, including notes and accounts of all kinds whatsoever, except the notes and accounts I hold against the estate of my son William, deceased; these I order my son Joseph to deliver to the family of my said son William." More than eleven years after the execution of this will, to wit, January 28, 1898, the testator died, leaving as his only heirs at law the beneficiaries named in the will and his said granddaughter, Harriet Westfall, who is the appellee in this appeal. The will was duly admitted to probate, and letters testamentary issued to appellant Charles Negley. Appellee on June 8, 1898, brought an action in due form in the Marion Circuit Court against these appellants, to contest the validity of said will, which action she voluntarily dismissed on the 2d day of February, 1899, and on January 25, 1900, filed another complaint against the same parties to contest, assigning the same grounds as in the former suit, namely, undue execution, duress, and unsoundness of mind of the testator. The defendants answered in four paragraphs. The first a general denial. The other three, pleaded in bar, set up in various forms that the plaintiff on the 8th day of June, 1898, commenced in said court an action to contest said will against the identical parties, and for the identical causes; that the parties (these defendants) all employed counsel at great expense, and appeared to said action, and filed answer, and the cause was put at issue and set for trial, and, to avoid a hearing and determination by the court, the plaintiff, failing to prosecute in accordance with the condition of her bond, on February 2, 1899, before the day set for trial, voluntarily dismissed her said complaint, and suffered judgment for costs; that the plaintiff has fully enjoyed her statutory right to contest; that there is no merit in her complaint, and the same is brought further to annoy, harass, and vex the defendants. Trial; verdict and judgment for the contestant.

1. A demurrer to each of the affirmative answers was sustained, and these several rulings present, in the concrete, the single question, did the voluntary dismissal of her former action preclude appellee from renewing it within the limitation provided by the statute? The statute is that any person may contest the validity of any will at any time within three years after the same has been offered for probate. § 2766 Burns 1901. The institution of a suit and its voluntary dismissal without a trial is not a contest. A contest implies a trial and a final judgment; such a hearing as will amount to an adjudication of the validity of a will. The statute creating the right of contest prescribes the period in which the action may be brought. It does not pretend to regulate the number of suits that may be instituted. Neither does it provide any special penalty for the voluntary dismissal of a proceeding to contest a will which has been untimely or improvidently brought. A period of three years is given a plaintiff for investigation and decision. He may begin at any time within the period, and carry the proceeding forward to final judgment even after the period has expired. And we find nothing in the statute or in the nature of the action to prevent him from dismissing his suit as any other plaintiff, without prejudice, if before trial he becomes convinced that the facts or witnesses relied upon are untrustworthy or insufficient to entitle him to recover. Nor do we find anything in the statute to prevent him from renewing the same at any time within the statutory period, if, from the discovery of new facts or witnesses, he desires to do so. The only penalty we know of for the bringing and the voluntary dismissal of a civil action, including one of this class, is that the plaintiff shall pay all costs he has occasioned. This, generally, he must do before he is authorized to renew his suit. While the costs of a dismissed action remain unpaid, the commencement of a subsequent suit for the same matter will be presumed to be vexatious, and will be stayed by the court upon a proper application until paid, unless the plaintiff shows affirmatively that the second action is not vexatious, but excusable, and in good faith. Kitts v. Willson, 89 Ind. 95; Harless v. Petty, 98 Ind. 53, 56; Clemans v. Buffenbarger, 106 Ind. 16, 5 N.E. 548; Cashman v. Brownlee, 128 Ind. 266, 27 N.E. 560; Carrothers v. Carrothers, 107 Ind. 530, 8 N.E. 563; Eigenman v. Eastin, 17 Ind.App. 580, 45 N.E. 795. Therefore, since the answers do not seek a stay of the cause until the plaintiff has paid the costs of his former suit, but go in bar of appellee's right to renew the contest, though but one year had elapsed since the will was offered for probate, they are insufficient. To sustain them would be in effect to hold that a voluntary dismissal of a pending suit to contest a will is equivalent to a contest within the meaning of the statute; and this we can not do. The demurrer to each of the answers was properly sustained.

2. Appellants have assigned as error the action of the court in adjudging the will invalid upon the verdict of the jury, upon the ground that it was not sustained by the evidence, they claiming the right, under § 2775 Burns 1901, to assign, on appeal to this court, error on questions of fact, as well as of law, for our consideration and decision from the field of the evidence. The argument is that § 2775, supra, prescribes a rule of procedure in the special proceeding to contest a will, and the practice in this court on appeal is not therefore governed by § 667 Burns 1901 (§ 647 of the civil code). The question has long since been decided against the position here assumed, and we have not been persuaded that the previous ruling is incorrect or should be modified. Coffman v. Reeves, 62 Ind. 334; Eckert v. Binkley, 134 Ind. 614, 620, 33 N.E. 619. It may be considered as thoroughly settled, under the existing code of practice, that in all cases triable by jury this court will not undertake to determine questions of fact from the weight of the evidence.

3. It is earnestly insisted by appellants that their motion for a new trial should have been sustained because the verdict of the jury was not sustained by sufficient evidence. At the proper time the court directed the jury that they should return their verdict for the defendants, unless they should find from a preponderance of the evidence that Clark Wait at the time he executed the will was of unsound mind. There is no complaint by appellee of this instruction, and no claim that her case was made out on any other theory. The case will therefore be treated as if the want of testamentary capacity is the only ground of contest relied upon. The evidence upon this issue is very voluminous, covering more than 1,400 typewritten pages. There is substantially no conflict to be found in the evidence, and absolutely none on any important question of fact. The verdict rests upon the following: The testator in early life was prostrated with heat, and carried to the house in an unconscious condition. Ever after that event he was distressed by the hot sun frequently complained of severe pains in the head, died at eighty-five, and during the last twenty years of his life was afflicted with disease of the kidneys and bladder, and occasionally with neuralgia and rheumatism. On September 30, 1886, when at the age of seventy-three, he called at the house of his neighbor, a justice of the peace, and an acquaintance of thirty years, and requested the justice to prepare his will. He expressed the desire that the business be privately transacted, and that no one else be admitted to the room, and upon his suggestion the justice locked the door. At the time he had living his childless second wife, three children, and two grandchildren, the children of his deceased son William. In directing the justice as to the provisions of his will he made no mention of his grandchildren, nor of their deceased father's family, whereupon the justice inquired what he was going to do, if anything, for William's family, and he remarked, "nothing;" that "he had given William all he intended, and did not propose to give the children anything." Upon being advised that it would be at least safer to mention them in his will, he directed a provision that certain notes and accounts, amounting to about $ 1,000, he held against William's estate be turned...