Workman v. Workman

• Decision Date: 20 February 1943
• Docket Number: 16812.
• Citation: 46 N.E.2d 718,113 Ind.App. 245
• Parties: WORKMAN et al. v. WORKMAN.
• Court: Indiana Appellate Court

46 N.E.2d 718

113 Ind.App. 245

WORKMAN et al. v. WORKMAN.

No. 16812.

Appellate Court of Indiana, in Banc.

February 20, 1943

Rogers & Waller, of Washington, Herbert W. Lane, of Jasper Tucker & Tucker, of Paoli, and Ralph Lane, of Detroit Mich., for appellants.

Carl M. Gray, of Petersburg, Lutz, Johnson & Lutz, of Indianapolis, Henry Heil, of Orleans, Fabius Gwin, of Shoals and L. A. Savage, of Jasper, for appellee.

ROYSE Judge.

This is an action by appellee to contest an instrument in writing purporting to be the last will of John T. Workman, deceased. The purported will was probated in the Martin Circuit Court on May 19, 1938. The original complaint in this action was filed in the Martin Circuit Court on the 25th day of March, 1939. On March 31, 1939, before any of the appellants appeared in this action, appellee filed the amended complaint on which said action was tried.

Subsequent to the filing of the amended complaint and before the trial, the record discloses the following facts which are important in the consideration of some of the questions presented to this court for determination:

On April 6, 1939 the defendants (appellants) entered their full appearance in said cause. On April 13, 1939, the plaintiff (appellee) moved the court for an order to require the defendant to submit to an oral examination regarding the matters set forth in plaintiff's complaint. This motion was on the same day granted and the examination ordered to be taken on the 2nd day of June, 1939. On August 15, 1939, said court ruled the defendants to answer plaintiff's complaint. On August 16, 1939, the defendants filed their joint and several motion to dismiss the plaintiff's amended complaint. On August 28, 1939, the plaintiff filed his verified motion for a change of venue from Martin County, which motion was sustained by the court on the same day. On August 29th both of the parties appeared in open court, and not being able to agree on a county to which the venue of said cause would be changed, after the plaintiff and defendants had alternately struck, as provided by law, Orange County was left and the venue changed to the Orange Circuit Court. On September 15, 1939, the Clerk of the Martin Circuit Court filed the transcript of said cause in the Circuit Court of Orange County. On September 16, 1939, oral argument was heard by said court on the defendants' motion to dismiss. On September 25, 1939, the plaintiff requested leave of the court to file plaintiff's affidavit verifying plaintiff's amended complaint. On the same day the defendants separately and severally filed their verified written objections to the plaintiff being granted leave to verify his amended complaint. On October 6, 1939, the Orange Circuit Court overruled the verified objections of defendant to the plaintiff's being granted leave to verify his amended complaint, and the plaintiff was granted leave to file his affidavit verifying said amended complaint and thereupon filed said affidavit. On November 27, 1939, plaintiff offered to file a second verification of his amended complaint. On December 11, 1939, the defendants filed their joint and several written objections to the second verification of plaintiff's amended complaint offered to be filed November 27, 1939, which said objections were sustained by the court. On the same day the court overruled the defendants' motion to dismiss. Thereupon, on the same day, the defendants filed a second motion to dismiss said action and the court overruled said second motion to dismiss. On the same day the defendants then filed their demurrer to a part of said complaint. On February 17, 1940, the court sustained said demurrer to a part of said complaint, and on said day the defendants filed their separate and several answer in general denial to said amended complaint.

Upon the issues thus joined, the cause was submitted to a jury for trial. The jury returned a verdict for appellee, and that the will in suit is not the last will and testament of John T. Workman, deceased. The court rendered judgment on the verdict and ordered that the probation of the will be set aside and held for naught, and for costs. Motion for a new trial was seasonably filed, which motion was overruled by the court and exceptions taken.

The assignment of errors in this court contain five specifications, as follows:

"1. The trial court erred in overruling the motion of the appellants to dismiss this action, which was filed in the Martin Circuit Court, of Martin County, Indiana on August 16, 1939.

"2. The trial court on October 6, 1939, erred in overruling appellants' written objections to the appellee, Ott Workman, verifying by the affidavit of said Ott Workman the amended complaint in this cause.

"3. The trial court on October 6, 1939, erred in permitting the appellee, Ott Workman, over the written objections of the appellants filed in this cause, to verify the amended complaint of the appellee, Ott Workman, in this cause, by the affidavit of said Ott Workman filed for that purpose.

"4. The trial court erred in overruling the motion of the appellants to dismiss this action, which was filed in the Orange Circuit Court, of Orange County, Indiana, on December 11, 1939.

"5. The trial court erred in overruling appellants' motion for a new trial."

In order to reach an understanding of the questions involved in this appeal, we deem it necessary to set out certain of the pleadings.

Bond was filed with the original complaint.

The amended complaint, omitting the formal parts and the part ruled out on demurrer, is as follows:

"The plaintiff for his amended complaint herein complains of the defendants and says, that the defendant, Ida Workman, Executrix of the Last Will and Testament of John T. Workman, is the duly appointed, qualified and acting executrix of said decedent's Will and that Ida Workman, as an individual and Norval Sutton are beneficiaries of the Will of the decedent, John T. Workman.

"The plaintiff further complaining says, that he is the son and sole surviving heir-by-blood of John T. Workman, deceased, and that he is 55 years of age.

"The plaintiff further avers that the decedent, John T. Workman, was the husband of the mother of this plaintiff and that there were born to said union three sons, one of whom died at the age of ten, another son Charles, who died at the age of 45 without leaving any issue by him and that the first wife and mother of this plaintiff died March 30th, 1932.

"The plaintiff further avers that the deceased John T. Workman died on or about the 16th day of May, 1938, at and in the County of Martin, State of Indiana, and that at the time of his death, he was 76 years of age.

"The plaintiff further avers that the defendant, Ida Workman, was married to the deceased John T. Workman on the --- day of ----, 193--, and that the defendant, Ida Workman had been married some two or three times prior to her marriage to the deceased, John T. Workman.

"That the defendant, Ida Workman, is the mother of the defendant, Norval Sutton, who is the sole and only child surviving of the defendant, Ida Workman.

"The plaintiff further avers that the decedent, John T. Workman, had resided practically all of his life in Rutherford Township, Martin County, Indiana, and that the defendant, Ida Workman, was very much younger than the decedent John T. Workman, being not more than 51 years of age at the time of the happenings hereinafter complained of.

"The plaintiff further complaining says, that the deceased, John T. Workman had been industrious and frugal and had acquired property of the fair and reasonable value of more than $50,000.00 prior to his marriage to the defendant herein, Ida Workman, and that practically all of said property had been acquired during the time that the deceased, John T. Workman, resided with the mother and this plaintiff during the life of the first wife of John T. Workman and mother of this plaintiff.

"The plaintiff further avers that he is the only heir-at-law of the deceased, John T. Workman, other than the defendant, Ida Workman, who was the second, childless wife of the deceased, John T. Workman, and owned no interest in his estate other than her statutory allowance of $500.00, one-third of the personal estate and a life estate in one-third of the real estate and that the plaintiff herein, Ott Workman, would under the law, inherit the remaining two-thirds of the personal property after the payment of the widow's statutory allowance of $500.00 and would inherit the fee simple in all the real estate owned by the decedent at his death, subject only to a life estate in one-third thereof to his surviving widow and childless second wife and that said real estate and personal property that this plaintiff would inherit, under the law, is and was of the value of more than $50,000.00.

"The plaintiff further avers that on the 19th day of May, 1938, a certain writing and written document purported to be the Last Will and Testament of the said John T. Workman, was presented to the Clerk of said Martin Circuit Court as the Last Will of the said John T. Workman and was on said day admitted to probate and was then and there probated as such Will and that thereupon, defendant Ida Workman was duly appointed and commissioned by the Clerk of the Martin Circuit Court as executrix of said pretended Will and attempted to file her bond as such executrix of said Will but that said bond was without security thereon in an amount sufficient to warrant the issuance of the letters testamentary to the defendant, Ida Workman, but that notwithstanding that fact, she entered into the duties of executrix of the Will of the deceased, John T. Workman, and ever since has been and still is acting as such executrix.

"The plaintiff further avers that the

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