In Re Klein's Will

By a record entry of the trial court, dated June 22, 1925, which was the 19th judicial day, it is disclosed that Mary A. Copeland, by attorney, appeared and produced and offered for probate an instrument of writing purporting to be the joint last will and testament of decedent Margaret Klein and Michael J. Klein, deceased, which bore date of August 7, 1917. Otherwise, the record does not show that the action of the court was invoked.

This proponent of the instrument in writing for probate as a will introduced evidence to prove the will. Upon the evidence, the finding of the court was that the evidence was not sufficient to prove the execution of the instrument of writing, and thereon adjudged, on September 17, 1925, the 10th judicial day of the September term, 1925, that the probate of the instrument in writing purporting to be the last will and testament of Margaret Klein, alias Maggie Klein, deceased, be denied, and costs against the proponent, Mary A. Copeland.

Proponent's motion for a new trial, for the causes (1) the court erred in not admitting to probate the last will and testament of Margaret Klein and Michael J. Klein, deceased; (2 and 3) the decision of the court is not sustained by sufficient evidence, and is contrary to law, was overruled.

Proponent gave bond and perfected a term-time appeal, and assigns as error the overruling of her motion for a new trial.

This action is ex parte, but proponent by her assignment of errors names herself proponent of the will, appellant, against Samuel J. Copeland, administrator of the estate of Margaret Klein, deceased, and Barbara Keller, administratrix of the estate of Michael J. Klein, deceased. It does not appear by the record that administrator Samuel J. Copeland's decedent was the same and identical person as the purported Margaret Klein, and the same condition of lack of identity is presented by the record concerning administratrix Barbara Keller's decedent Michael J. Klein.

Barbara Keller, as such administratrix, appears specially, and moves to dismiss the appeal for the reason that the statute does not provide for an appeal from a judgment which denies a 1. purported will to be probated in an ex parte proceeding. Section 45 of ch. 11, 2 R.S. 1852 p. 308, § 3490 Burns 1926, in the opinion of the court, sanctions this appeal, and it is so held.

This administratrix, for another reason to dismiss the appeal, alleges that she was not a party to the proceeding to probate the will, and the fact, if it be a fact, that she is the 2-4. administratrix, is not sufficient in law to make her a party appellee on appeal. This court concurs in the point, but deems it insufficient to move to order the dismissal of the appeal. Naming more parties than necessary as parties to the appeal will not of itself defeat the action of appeal; but the circumstance as thus shown by the record is sufficient to dismiss the appeal as to all who were not parties in the action nisi prius. It appears from the record that neither of the appellees was made a party to the actionnisi prius, neither did either of them interplead, and it also appears from the record that neither of appellees was affected by the judgment. The appeal is dismissed as to each appellee, upon the court's own motion, based upon the record.

Proponent sought to prove the instrument in writing, which she produced in open court, to be the joint will of Margaret Klein and Michael J. Klein, by proof of signatures to the 5. instrument to be genuine. The instrument in writing is not before us, because it was not admitted in evidence. Proponent offered no evidence that she was interested in any part of the estate specified in the will (§ 22, ch. 11, 2 R.S. 1852 p. 308, § 3463 Burns 1926); nor evidence of the fact that the persons whose alleged joint will was offered for probate were inhabitants of Marion County, Indiana; nor that such persons left assets in the county of the jurisdiction of the court; nor that assets of such persons shall come into the county of the jurisdiction of the court thereafter. (§ 23, ch. 11, 2 R.S. 1852 p. 308, § 3465 Burns 1926.) All the evidence is in the record, and it does not disclose that Margaret Klein and Michael J. Klein, whose signatures are subscribed to the "instrument of writing," are dead. In the transcript of the record of this proceeding, it appears that, on September 22, 1925, the 12th judicial day of the September term, 1925, comes now "Samuel J. Copeland, administrator of the estate of Margaret Klein deceased, and files his petition for instructions regarding the settlement of an insurance policy on an automobile"; and that, on the same day, by another record entry, it appears, "Comes also Barbara Keller, administratrix of the estate of Michael Klein, deceased, and files her intervening petition," asking that the settlement of an insurance policy be made as asked in the petition of Samuel J. Copeland, administrator of the estate of Margaret Klein, deceased, but represents that the fund that may be secured through settlement belongs to the estate of administratrix' decedent. The court ordered that settlement be made as prayed, but that the fund be held in trust until further order of the court. These petitions are entitled: "In the Matter of the Estate of Margaret Klein, deceased." Appellant's praecipe for the transcript to the clerk of the probate court is entitled: "In the Matter of the Application to Probate the joint Last Will and Testament of Margaret Klein and Michael J. Klein, deceased," and requested the clerk "to make a complete transcript of the record of the proceedings in the above entitled cause, from and after June 22, 1925, and to include all papers and pleadings, filed and on file, all order-book entries of all orders and rulings of the court and exceptions and the final judgment in said entitled cause, and certify the same to be used on appeal to the Appellate Court of the State of Indiana." Said transcript to include the original bill of exceptions, after which is subscribed the name of proponents' attorney.

Neither the petition to compromise and settle an insurance claim nor the petition to intervene in the same matter as referred to is entitled in this proceeding, but they are 6. entitled in another and different proceeding. Neither of these petitions nor the orders of the court thereon were asked to be incorporated in the transcript of the record in thisex parte proceeding. These petitions and the orders of the court relating to them have no place in the transcript before this court, and are not a part of the record of this proceeding.

It may further be said that these petitions — to compromise a claim and to intervene thereunder — and the orders of the court relating thereto, if considered upon appeal, lend no 7, 8. support to an inference of fact that the estate of Margaret Klein, deceased, was pending either before this proceeding was instituted, to wit: June 22, 1925, or before the judgment was rendered, to wit: September 17, 1925, from which this appeal was taken. The date of the first entry which relates to "In the Matter of the Estate of Margaret Klein, deceased," which is the entry of the petition to compromise the insurance claim, was of the date September 22, 1925. There is nothing erroneous in the transcript of the record of this proceeding concerning "In the Matter of the Estate of Margaret Klein, deceased," to show when letters of administration were issued, if such letters were even issued by the court nisi prius, neither is there anything to show when and if letters of administration were ever issued upon the estate of Michael J. Klein, deceased. The courts did not know the identity of either Margaret Klein or Michael J. Klein, because the evidence is silent upon the matter. For aught the probate court knew, as shown by the record, these persons were alive. If it be admitted that an inference might be drawn from the evidence that Margaret Klein was dead, it is not sufficient to hold that the finding of the court is not sustained by sufficient evidence, for it will be presumed that the finding of the trial court is correct, in the absence of conclusive evidence that she is dead.

There is not sufficient evidence to establish the facts necessary to admit the instrument in writing produced as the will of the parties to probate. The finding of the probate court is sustained by sufficient evidence, and it is not contrary to law.

Judgment affirmed.

Gemmill, J., concurs with an opinion.

Martin, J., concurs with an opinion.