191 Ind. 460 | Ind. | 1922
This was an action to establish and probate an alleged lost or destroyed will. It was commenced by the father of appellee in the names of himself and his daughter, before appellee had reached the age of twenty-one years. The complaint alleged and the court found that in 1894, Charles A. Hottenstein made a will by which he gave to appellee’s father and appellant a life estate in certain lands, with remainders to their children, respectively, and caused it to be duly witnessed; that in 1898, he added a codicil, and caused it to be duly witnessed; that he died in 1903, and that after his death the will and codicil were lost or destroyed. Appellee’s father continued as an active plaintiff throughout the trial, but upon issues formed on an answer and cross-complaint the court found and adjudged that by the execution of certain deeds, he had
Neither was he competent to testify that the paper produced by him was a copy of his father’s will, or of papers bearing the genuine signatures of his father and certain witnesses, or otherwise to identify the papers found in his father’s desk as having been executed by him in his lifetime, and it was error to admit his testimony relating to those subjects.
But we think he would not be incompetent to testify to the mere fact that after his father’s death certain papers were found in the father’s desk, and that he made a copy of those papers, and to identify that copy, if these facts were otherwise shown by competent evidence to be pertinent and material,, since all of this related to what happened after the death of the ancestor. Though any identification of the papers with the father in his lifetime, beyond the mere statement where and when they were found after his death, could only be made by other evidence than testimony of the plaintiff.
The judgment is reversed, with directions to sustain appellant’s motion for a new trial.