80 Ind. App. 122 | Ind. Ct. App. | 1923
William H. Vail of Valparaiso, Porter
Appellants assign as error and contend that the court had no jurisdiction in the proceedings herein to hear and determine the question of the soundness or unsoundness of mind of the testator, and the due execution of the will, and to cut off and bar the rights of appellants to contest the validity thereof as provided by law. But in this contention appellants cannot prevail. The cross-complaint seeks not only a construction of the will of the said deceased, but it also contains averments that appellants were claiming that such will was invalid and without force and effect for the reason that the decedent
The action presented by the cross-complaint was one of equitable jurisdiction. It is more than an action to construe the will. It is an action to quiet the respective titles of the appellees as devisees and legatees thereunder, as well as an action to construe. It is a well-established principle that where equity assumes jurisdiction it will retain it, and decide all questions arising in the cause. Faught v. Faught (1884), 98 Ind. 470, and other cases there cited. Clearly, the court under the issues was required not only to construe the will involved, but to pass upon its validity, and its validity must of necessity depend upon the soundness of mind of the testator and its execution. These questions, therefore, were clearly within the jurisdiction of .the trial court. We quote from Faught v. Faught, supra, on p. 473, as follows: “No cause of action could have existed without proof of a valid will. It could not have existed because the title, and the only title, was founded, by explicit and traversable allegations, upon the provisions of the will, and because, if there was no valid will, there was in legal contemplation no instrument for construction. If no more had
Appellants contend that there was no evidence to support the finding of the court, which was a general finding, that the decedent was the owner of the property by him devised and bequeathed respectively to the appellees, but they must fail in this contention for, in the absence of evidence to the contrary, there is ample direct evidence, or evidence from which there was reasonable inference to sustain the finding of the court, that the decedent was the owner at the time of his death of all of the items of property by him disposed of by his will.
Appellants say that it was error for the court to hear certain evidence as to whether the decedent was of sound or unsound mind because such question was not within the issues; but, as we have heretofore determined that the court had jurisdiction to try the question of the
Appellants complain of the action of the court in overruling their objection to permitting witness J. H. Stoner to testify that the decedent was of unsound mind, the objection being based upon the fact that the witness was the physician of the deceased, and that for' that reason was disqualified to testify as to the soundness or unsoundness of mind of the testator. It is the contention of appellants that such evidence was privileged and such as the physician was not authorized to divulge. We have to say, were there an absence of other controlling circumstances, that there is merit in appellants’ contention. •
In Williams v. Johnson (1887), 112 Ind. 273, 275, N. E. 872, the court says: “A physician is not permitted to disclose the result of observations or examinations made by him upon the person of his patient, unless with the consent of the latter, or unless the patient in some way waives his privilege.” This authority is cited with approval in Pittsburgh, etc., R. Co. v. O’Connor (1908), 171 Ind. 686, 85 N. E. 969, where other authorities on this point are cited. And in Pence v. Myers (1913), 180 Ind. 282, 101 N. E. 716, the court says that, “It is well established that in a will contest, a physician, attendant on a testator, at the time of his death, should not be permitted to give testimony tending to strike down the will as to the condition of the testator’s mind or as to the disease from which he suffered, the cause of duration of his illness, or the cause of his death, unless the objection thereto is waived by him, who stands in the place of the decedent.” From these authorities it clearly appears that, unless there was such a waiver upon the part of the one who stands in the place of the decedent, the admission of such testimony was error. But in Morris v. Morris (1889), 119 Ind.
Appellants’ authorities on the alleged error of the court in permitting witnesses to testify as to conversations had with the testator before the execution of his will are not in point as they apply only to cases where the construction of the will is in
Appellants have assigned as one of their reasons for a new trial that the court erred in overruling their application for a continuance of the trial of said cause. Appellee contends, however, that no question is presented by the record because it affirmatively appears therefrom that appellants’ motion for a continuance was sustained. It appears, however, that while the motion for the continuance was sustained the continuance was granted only from three o’clock of the afternoon of November 29, 1920, to the morning of November 30, 1920, when the cause was again called for trial. There was no other application for a continuance than the one which was filed on November 29, 1920, and which was sustained. There was, however, an objection upon the part of appellants to proceeding with the trial of the cause on the. morning of November 30, stating as a ground for their objections thereto substantially the grounds set up in their motion for a continuance filed on the previous day. Without deciding as to whether the court’s action in continuing the case for trial only until the following morning virtually amounted to overruling the motion for a continuance although such motion was technically sustained, we proceed to the examination of the motion for the purpose of determining as to whether upon the facts stated therein the court abused its discretion in continuing the case only until the following morning. For this purpose we shall concede without deciding, that the action of the court aforesaid amounted virtually to overruling appellants’ motion for a continuance. In examining this question it must be kept in mind that the matter of granting a continuance is largely within the discretion of the trial court, and that such discretion will not be
Appellants’ application for a continuance is based upon the ground that two of their attorneys withdrew from the case shortly before the date set for trial, and that they had been unable to secure the services of other attorneys in time to make due preparation for the trial. The application was not. made by any one of appellants but by the husband of appellant Flora M. Dunlap, and we find no statement in the application that it was made for or on bebialf of appellants or any one of them. It may be justly contended, however, that by reasonable inference, because of its contents, it was made on behalf of appellants Cora B. Sager and Flora M. Dunlap. None of appellants was present. Those other than the above named appellants may have had ample notice of the withdrawal of said attorneys, and may have been responsible therefor. Edward Lynn of Rochester, New York, a practicing attorney in good standing and a brother-in-law of appellant Cora B. Sager had been originally employed on behalf of appellants, and came to Valparaiso and secured the services of local attorneys to prosecute the action. While 4t appears by affidavit that it was not the intention that said Lynn should assume the principal charge of the case, yet it does not appear from the affidavit that he was not an attorney for appellants at the time of the trial, and his absence is unaccounted for. Davis and Starr were the attorneys employed by said Lynn to represent appellant and as appears by the affidavit they were reputable attorneys of Gary, Indiana, and there is no reason given for the withdrawal of such attorneys
Appellants contend that the court erred in overruling their motion in arrest of judgment, stating as a ground therefor that several causes of action are improperly joined in appellees’ complaint. We have heretofore in effect passed upon this question of improper joinder when we held the issues presented were properly within the jurisdiction of the court in this action. It is thoroughly settled in this state that the only cause for which a judgment may be arrested is the insufficiency of the complaint to state a cause of
Under §344 Burns 1914, Acts 1911 p. 415, one of the grounds for demurrer to a complaint is that several causes of action have been improperly joined. Section 348 Burns 1914, Acts 1915 p. 415, provides, as here applied, that if no objection is taken by demurrer the defendant shall be deemed to have waived such objection. There was no demurrer filed to appellees’ complaint, so that, though appellants had stated proper causes for an arrest of judgment, they had waived the same by failing to demur to the complaint, except only as to the jurisdiction over the subject matter of the action.
Appellants contend that the court was without jurisdiction to determine the heirship of appellees Jessee and that therefore the motion in arrest of judgment should be sustained. But we do not so understand. It was necessary to determine the fact that appellees Jessee were children of Theophilus S. Jessee in order to determine their relation to the action and rights under the will, and certainly appellants were not harmed by such determination. Nor may appellants complain that there was no direct affirmative averment in the complaint that the testator of the will involved owned the property therein devised and bequeathed at the time of his death. If 'it was not so owned by him then appellees received nothing by reason of the terms of the will, and appellants were not harmed thereby. We think, however, that by reason
By an examination of the whole record we are satisfied that a right result has been reached. Judgment affirmed.