Est. of Cameron v. Kuster, Exec. , 142 Ind. App. 645 ( 1968 )

142 Ind. App. 645 (1968) 236 N.E.2d 626

ESTATE OF CAMERON, DECEASED ET AL.
v.
KUSTER, EXECUTOR.

No. 1067A78.

Court of Appeals of Indiana.

Filed May 16, 1968.

Gates, Gates & McNagny, of Columbia City, for appellants.

Albert J. Kuster, of Ligonier, Philip C. Barker, of Goshen, F. Jay Nimitz, of South Bend, and R. Stan Emerick, of Kendallville, for appellees.

No petition for rehearing filed.

BIERLY, J.

This is an appeal from a nunc pro tunc order admitting an alleged codicil to probate, as of a date more than two years prior to the entry of the order.

The original order of probate was dated May 17, 1965, and on March 23, 1967, the executor filed a motion to correct record, to which motion appellant George S. Coggeshall filed objections. On July 19, 1967, the Noble Circuit Court granted the executor's motion to correct the record.

The trial court's order book entry, inter alia, stated:

"(3) That such written instrument purporting to be a codicil to such decedent's Last Will and Testament was duly executed in all respects according to law, has been duly proven is a codicil to the Last Will and Testament of decedent herein and is entitled to be admitted to probate as such in such County."

The purported codicil, as found in the transcript, and typed out by us as best we can decipher it, is as follows:

"Codicil May 1965

In addition to my Last Will and Testament "duely executed and witnessed" on ______ 1965, I wish to make this "bequest," gift with out tax. I wish to give all of my Kenneceot Copper to Howard LaFollette, 605 South 29th St. South Bend, Ind. Howard's Mother^[1] was my cousin's son (Blanche Hayward LaFollette) (He make me think of my Father's gentle ways).

To my Executor:

1st Transfer UK and SN (by way of MLFBS of Fort Wayne) to Margaret and George Coggeshall.

2nd Transfer NAC to Robt Van Auken and Nancy Carlson 1/2 each of all my NAC.

3rd Transfer K to Howard LaFollette.

Sell at Merrell Lynches
100 Alummum (?)        3,800
103 Lytton (?)        10,000
6 Lytton pl 3% con   6,360
22 Glidden            1,320
82 Fansteele          1,820
82 Standard Jersey    7,000
______
(Mr. Pletcher)? House              20,000
______
(Pay mortgage
Pay Mr. Kuster    with contract)   41,300
2 Taxes
3
140000
7    State Tax   Fed Tax is
980000                usually the
980000                same
980000    Mr. Kuster    5%
_________
30,000.00    "     "       2-1/2%
________
7-1/2

If you can salvage
about 40000 — Then
I should like that 10000.
be given like this: Codicil   #2
To Maud Wolf             500.
To Abe Rice              500.
To Edith Miller          500.
To Wilma Kuster          500.
To Ann Hunt             1000.
______
3000.

The rest of the money to go to George Coggeshall."^[2]

It is obvious that the above "codicil" was neither signed by the testatrix nor attested by two witnesses. Proofs of codicil, other than by subscribing witnesses, were filed by three persons. Each proof was limited to an opinion that the "codicil" was in the handwriting of the decedent, and two of them stated that the decedent was competent and of sound mind. Two of these witnesses were beneficiaries under the "codicil."

Appellant attacks the jurisdiction of the court below in admitting to probate a document which is non-testamentary on its face.

Appellees contend that appellants cannot collaterally attack the probate of the "codicil" since they have failed to file objections as provided in Burns' Stat. Anno. § 7-117 (1953 Replacement).

Under Burns' Stat. Anno. § 7-113 (1953 Replacement), it is provided that:

"When a will is offered for probate, if the court or the judge ... finds that the decedent is dead and that the will was executed in all respects according to law, it shall be admitted to probate ..." (emphasis supplied).

The above statute certainly was not complied with in the case at bar, for it is obvious from the face of the codicil that it was not properly executed, "in all respects according to law."

Generally, any attack on the validity or execution of a will must be made within the statutory time under Burns' § 7-117, supra, however there is an exception to this general rule. As stated in In Re Caruch's Estate (1956), 293 P.2d 514, 139 Cal. App.2d 178:

"There is a very limited exception to this rule to the effect that if the order admitting the will to probate is void on its face it may be collaterally attacked at any time. In such a situation an attack under section 1080 of the Probate Code would be proper. This exception is strictly limited. The defect must be patent and not latent and must appear without question in the order or judgment under collateral attack. Thus, if a will that is unsigned is admitted to probate it may later be collaterally attacked. Wall v. Wall, 123 Pa. 545, 16 A. 598. The reason for this rule is that the probate court, although having jurisdiction over the estate and the parties, has no jurisdiction to admit to probate a will that shows on its face that it does not comply with statutory requirements." See also: In re Eakins Will (1939), 26 N.E.2d 219, 63 Ohio App. 265.

Because of the apparent violations of our Probate Code shown on the face of the purported codicil, we are of the opinion the trial court's admittance to probate of same was a nullity and the same should be reversed.

Judgment reversed.

Cook, P.J., Pfaff and Smith, JJ., concur.

NOTE. — Reported in 236 N.E.2d 626.

NOTES

[1] We are not sure as to the correctness of this word because of illegibility.

[2] A copy of the codicil is attached to this opinion as pages 124, 125, and 126 of the transcript.