Wright v. Fultz

• Decision Date: 26 September 1894
• Citation: 138 Ind. 594,38 N.E. 175
• Parties: WRIGHT et al. v. FULTZ et al.
• Court: Indiana Supreme Court

138 Ind. 594

38 N.E. 175

WRIGHT et al.

v.FULTZ et al.

Supreme Court of Indiana.

Sept. 26, 1894.

Appeal from circuit court, Washington county; W. T. Brannaman, Special Judge.

Proceedings by Louise A. Wright, administratrix and others, against George W. Fultz and others, to establish a lost will. Judgment for defendants, and plaintiffs appeal. Affirmed.

E. B. Stephenson and W. P. Adkinson, for appellants. Alspaugh & Lawler and Zaring & Hottel, for appellees.

DAILEY, J.

This was a proceeding by the appellants to establish an alleged lost will. There was a trial by the court, resulting in a finding and judgment for the defendants, from which this appeal is taken. The appellants contend that the court erred-First, in refusing to reject the general denial filed by the defendants below to the complaint; second, in overruling the appellants' demand for a jury; third, in excluding the evidence of the witness Levi C. Wright; fourth, in overruling their motion for a new trial.

In support of the first specification the appellants' counsel barely suggest that the answer in this case, to be available, should have been verified. It seems absurd to assume that a party should be required to file a plea of non est factum to an alleged will, when it is not contended that he had anything to do with its execution. The issue to be tried in an action to establish a lost will is, “Did she devise or not?” and is framed by the court, which, in matters of probate, usually hears the evidence and determines the controversy. 13 Am. & Eng. Enc. Law, 1142. It is clear that the court did not err in overruling appellants' motion to reject the answer.

Prior to the enactment of 1852, all cases for the establishment of lost wills were cognizable only in courts of chancery, and a jury could not be called, and the law in this respect has not been changed. Section 78 of the Revised Statutes of 1843 (pages 499, 500) reads that: “Whenever any will shall have been lost or destroyed by accident or design, and the same shall have been established by the proper proceeding in a court of chancery, the decree of such court establishing such will shall be recorded by the clerk of the proper probate court,” etc. Our present statute is an almost literal copy of section 78, supra, except the words “proper court” are substituted for the phrase “courts of chancery.” Rev. St. 1881, § 409 (1 Burns' Rev. St. 1894, § 412), provides that “issues of law and issues of fact in causes that prior to the 18th day of June, 1852, were of exclusive equitable jurisdiction, shall be tried by the court; issues of fact in all other causes shall be triable as the same are now triable.” It is only where the statute expressly gives the right of trial by jury, in this class of cases, that such right may be demanded. Dower v. Seeds, 28 W. Va. 113; Jaques v. Horton, 76 Ala. 238. The provision of article 1, § 65, of the constitution of this state, that “in all civil cases the right of trial by jury shall remain inviolate,” has reference to what were deemed civil actions at common law. Allen v. Anderson, 57 Ind. 388;McMahan v. Works, 72 Ind. 19. There is no contention that actions to contest wills are triable only by the court. It is conceded that the statute expressly authorizes a jury trial in such cases. But it is insisted that the establishing of a lost will is essentially different from an action to probate or contest a will, because the contents of a lost will must be...