Opinion

Scampmorte v. SCAMPMORTE, ADMR.

  • 133 Ind. App. 276
  • 179 N.E.2d 302
  • 1962 Ind. App. LEXIS 158
Court
Indiana Court of Appeals
Filed
Jan 5, 1962
Status
Published
Author
Bierly
On the bench
Bierly
Cited by
4 cases
Authority
More cited than 9.5%

The opinion

*294 On Petition for Rehearing

Bierly, J.

Appellant filed no brief in support of his Petition for Rehearing, nor have appellees filed any objection, or brief to said petition for rehearing.

Appellant charges error by the court on its opinion and decision:

“1. In holding that there must be testimony as to the execution of a will by at least two (2) subscribing witnesses in order to admit a will to probate, thereby contravening a ruling precedent of the Supreme Court to-wit, the case of Hayes V. West, (1871), 37 Ind. 21 , which holds that only the testimony of one (1) subscribing witness is necessary to establish a will when offered for probate, although two (2) witnesses are required for a valid execution.”

It appears that appellant has taken words out of context. In Hayes et al. v. West et al. (1871), 37 Ind. 21 , the court said:

“If one witness, however, knows that he and the other witness or witnesses subscribed the will, as such, in the presence of the testator, and at his request, there seems to us to be no legal necessity for calling any more. One witness is sufficient to establish a will when offered for probate. 2 G. & H. 557, sec. 27.” (Our emphasis).

It certainly is elementary that “only the testimony of one (1) subscribing witness is necessary to establish a will when offered for probate,” provided, that said subscribing witness can satisfy the probate court by knowledge that two (2) competent subscribing witnesses “subscribed the will, as such, in the presence of the testator and at his request.” (Our emphasis). Hayes v. West, supra, page 26.

*295 The record does not disclose nor does the opinion hold that Garnet Stottlemyer testified that two (2) witnesses subscribed to the will of the testator at his request. (Our emphasis).

The second error of the court as claimed by the appellant in his Petition for Rehearing is in holding that:

“The test in the instant case is not whether the witness saw the signature but whether the testator acknowledged the signature as his own, for the reason that under the law of execution in effect at the time the will was executed, it was merely required that said will be attested and subscribed in the testator’s presence by two (2) or more competent witnesses. Sec. 7-201 Burns’, Ind. Stat., Annotated, 1933 (2 R. S. 1852, ch. 11, Sec. 18, p. 308.)”

We reply in answer thereto, a paragraph of our opinion, to-wit: As has been previously stated, the attesting witnesses need not

“ ‘. . . see the testator sign the will, or that they should see his signature after he has signed, it being sufficient that the testator, in some manner, makes known to them the fact that he has signed it.’ ” Wersich v. Phelps (1917), 186 Ind. 290 . (Our emphasis.)”

We think appellant’s Petition for Rehearing does not possess sufficient merit to entitle him to a rehearing.

Petition for Rehearing denied.

Note. — Reported in 179 N. E. 2d 302 . Rehearing denied 180 N. E. 2d 385 .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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