173 Ind. 424 | Ind. | 1910
Action by appellees to establish and probate a will in their favor, alleged to have been executed by Katharine Gfroerer in the year 1906. The complaint is in one paragraph, to which appellants’ demurrer, for insufficiency of facts, was overruled.
In substance, it was alleged that Katharine Gfroerer died on October 5, 1906, a resident of Vigo county, leaving an estate in said county, real and personal, to be administered; that an administrator was appointed; that in September, 1894, decedent duly executed her last will in the presence of David W. Henry and George M. Crane, and by them, at her request, attested as subscribing witnesses; that the testatrix never revoked said will; “that, during the lifetime of said testatrix, her last will, so executed as aforesaid, was destroyed without her consent, and without the consent of these plaintiffs, said destruction of said will never having come to the knowledge of said testatrix;” that, “by the terms of said will, the testatrix devised and bequeathed all of her property, real and personal, to the plaintiffs, share and share alike.” Other formal averments are made.
It is urged that the complaint is insufficient, because (1) it fails to state when, where, how and by whom the will was destroyed, and (2) the last clause, before quoted, stated a mere conclusion, and not a fact.
If the defendants had at the time of forming the issues felt the need of more definite information, as now claimed, they might doubtless have obtained it by motion, on a proper showing. The statement, “said destruction of said will never having come to the knowledge of said testatrix, ’ ’ amounts to nothing as an averment of fact, and might have been stricken out without affecting the strength of the complaint.
The second objection to the complaint is without merit. As a means of identifying the beneficiaries of the alleged will, and as exhibiting the plaintiffs’ right to bring the action, it was sufficient.
The other specifications of error are predicated upon the motion for a new trial, and question the striking out of the testimony of a witness and the sufficiency of the evidence to sustain the finding.
Appellees insist that these questions are not presented, because there is no affirmative showing that the alleged bill of exceptions containing the evidence was ever filed as a document in the cause, and cannot, therefore, be treated as a part of the record.
It appears from the transcript that appellant was given ninety days in which to prepare and file a bill of exceptions.
It will be noted that there are two ways by which a bill of exceptions containing the evidence may be properly filed — namely by filing with the clerk, and in open court.
The order-book entry given records what was done in open court, and by it we are, in effect, informed that the defendant came into open court and presented to the court, for approval, his amended bill of exceptions as a part of his ease, and which bill was by the court approved, signed, and ordered filed, and made a part of the record. This shows that the defendant did all he could, under one of the ways pointed out by statute, to place a true bill of exceptions on file as a part of his cause. He prepared and presented such a bill to the court, in open court, and was apprised by the court that the same was approved, signed, and ordered to be made part of the record. Under such an order it was the duty of the clerk to place the bill on file as a paper in the cause, without any further step from the defendant; and that the clerk did so file it may be inferred from his recorded statement, that the bill set forth in the transcript, immediately after the words “which bill of exceptions is in the words and figures following, to wit,” is the same bill that the court approved, signed and ordered made part of the record. This we think, sufficiently shows a filing in open court.
The ruling in the case of Indianapolis, etc., R. Co. v. Ragan (1909), 171 Ind. 569, is distinguishable in this: That the statutes governing the filing of instructions and that relating to the filing of a bill of exceptions, differ.
Relating to instructions, §558 Burns 1908, subd. 6, §533 R. S. 1881, provides that “all instructions given by the court must be signed by the judge, and filed, together with those asked for by the parties, as a part of the record.1 ’ The act of 1903 (Acts 1903, p. 338, §1, §544a Burns 1905), in force at the time of the trial of Indianapolis, etc., R. Co. v. Ragan, supra, also provided that “all instructions requested, whether given or refused, and all instructions given by the court of its own motion, shall be filed with the clerk of the court at the close of the instruction of the jury.”
Relating to the use of original bills of exceptions on appeal, §657 Burns 1908, Acts 1897, p. 244, provides that original bills containing the evidence may be made a part of the record where “it shall appear from the record that such bill was presented to the proper judge of the trial court for settlement and signature within the time permitted by law and that allowed by the court, and that the same was signed by the judge and filed with the clerk of said trial court or in open court.”
Appellants complain of the court’s action in sustaining appellee’s motion to strike out all the testimony of two witnesses as irrelevant. We cannot consider the merits of the motion, because, as appears from the record, there was neither objection made to the motion nor exception reserved to the ruling.
It is also insisted that the finding of the court was not sustained by sufficient evidence, and was contrary to law. The evidence shows without contradiction that the will was duly executed, that it was left by the testatrix in the custody of David W. Henry, the scrivener, and by him put away among the papers of his office, to preserve; that the testatrix never called upon Henry for the will, nor did any one else on her behalf, nor did she express to him, or to any one else, to his knowledge, any dissatisfaction over the manner in which she had disposed of her property; that testatrix told other witnesses that she had made her will, and left it with Mr. Henry to keep for her. Mr. Henry further testified that he carefully put the will away, and had never parted with the custody, with his knowledge or consent, but, after diligent search everywhere the same would probably be, he failed to find it, and the same was lost or had been stolen from his possession. There is no evidence in the record to the contrary, and we think it sufficiently sustained the finding, and is not contrary to law.
Judgment affirmed.