Duckworth v. Matlock

31 Ind. 380

• Court: Indiana Supreme Court
• Decided: May 15, 1869
• Status: Published

Opinion

Rat, J.

It will be observed that the complaint in this case does not aver that the defendants or either of them have the custody of the alleged will, and therefore the facts stated do not authorize a citation against them, or either of them, to produce the same before the court.

The allegation that the widow pretends that such a will as is described in the complaint was not • duly executed amounts to nothing. If the appellants have such an instrumeat in their possession, they can offer it for probate; if it be in the possession of any one else, they can have a citation requiring the person having such custody to produce the will before the court that it may be proved. 2 G. & H. 556, sec. 25. It will be vain to ask' the opinion of this court upon the effect of the subsequent marriage of the alleged testator, by any proceeding other than the method provided by law. The court properly sustained a demurrer to the petition;

F. T. Brotan for appellants. $. Turman, for appellees.

Jiidgment affirmed, with costs.