Wenning v. Teeple
Decision Date | 16 October 1895 |
Docket Number | 17,078 |
Citation | 41 N.E. 600,144 Ind. 189 |
Parties | Wenning et al. v. Teeple et al |
Court | Indiana Supreme Court |
Petition for Rehearing Overruled February 13, 1896.
From the Owen Circuit Court.
Judgment reversed, with instruction to sustain appellants' motion for a new trial, and for further proceedings not inconsistent with this opinion.
D. E Beem and W. Hickam, for appellants.
I. H Fowler and W. A. Pickens, for appellees.
Monks, J. Jordan, J., did not participate in the decision of this cause.
This was a proceeding to contest and set aside the last will of John Wenning, deceased, and the probate thereof, instituted by appellees against appellants.
It is alleged in the complaint The complaint sets forth the will in controversy, and also the laws of Dakota concerning marriage and divorce.
A demurrer to the complaint, for want of facts, was overruled. The cause was tried by jury and a verdict returned in favor of appellees, and over a motion for a new trial, judgment was rendered setting aside said will. The only errors urged call in question the sufficiency of the complaint and the action of the court in overruling the motion for a new trial.
Appellants admit that it is sufficient, under the decisions of the court, to allege the cause of contest in the language of the statute, but insist that as the allegations which follow the averment "that said will was unduly executed" constitute the charges of fraud or undue influence relied upon, and that the court should apply the law to these specific allegations, and if these are insufficient a demurrer to the complaint should be sustained.
If the allegations referred to are to control the general averment of undue influence, and are intended to be a specific statement of facts constituting such undue influence, then a demurrer to the complaint should have been sustained.
The mere fact that Mary A. Wenning was married to one Thalle at the time she was married to Wenning, on the 16th day of April, 1894, and that she had never been divorced from Thalle would not be sufficient ground for avoiding the will. Schouler Wills, sections 224, 238, 239. It would be proper to prove such facts, if they exist, at the trial of the cause, under the general allegation that the will was unduly executed, but, if proven, they alone would not establish the allegation of undue execution.
We think, however, that said allegations concerning the marriage of appellant, Mary A. Wenning, and her not being divorced, and the laws of Dakota are not stated in such a manner as to limit or control the general averment that the will was unduly executed. Such allegations are mere surplusage and could have been stricken out on motion. If, however, the same had been stated with other allegations in such a way as to show that the execution of the will had been procured by fraud or duress, or had been unduly executed for any other reason, it would be proper to overrule a motion to strike out such allegations. The complaint containing the general allegation that the will was unduly executed was sufficient to withstand the demurrer. Kenworthy v. Williams, 5 Ind. 375; Reed v. Watson, 27 Ind. 443; Bowman v. Phillips, 47 Ind. 341; McDonald v. McDonald, 142 Ind. 55, 41 N.E. 336.
Appellees earnestly insist that what purports to be a bill of exceptions containing the evidence is not a part of the record, for the reason that it was never filed, and that, therefore, no question is presented by the motion for a new trial. There is nothing in the record showing that what purports to be a bill of exceptions containing the evidence was ever filed in the court below.
It is well settled that a bill of exceptions, although signed by the judge, is not a part of the record until it is filed. Downey v. Head, 138 Ind. 503, 38 N.E. 169, and cases cited; Ayres v. Armstrong, 142 Ind. 263, 41 N.E. 522; Elliott App. Proceed., section 805, and cases cited. Under these authorities the evidence is not in the record and cannot be considered in the determination of this cause. It does not follow, however, that all the causes specified for a new trial will fail for this reason.
It is assigned as a cause for a new trial that the court erred in giving instruction 10 to the jury of its own motion, and also that the court erred in giving instruction 17 asked by the appellees. These instructions are in regard to the presumptions and burden of proof as to the marriage to Thalle and the dissolution thereof, and as to the legality of the marriage to Wenning.
It is settled law in this State that when a marriage has been consummated in accordance with the forms of law it is presumed that no legal impediments existed to the parties entering into such marriage, and the fact, if shown, that either or both of the parties have been previously married and that such...
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