Blough v. Parry

McCabe, C. J. The appellees brought suit in the — 465 — Lagrange Circuit Court against the appellants to contest the will of one Noah Blough. Proper issues having been formed upon the complaint the venue of the cause was changed to the Elkhart Circuit Court, where a trial by jury resulted in a verdict and judgment in favor of the appellees, setting aside said will, over appellants’ motion for a new trial. The only error assigned here is on the action of the circuit court in overruling appellants’ motion for a new trial. The grounds of contest alleged in the complaint were unsoundness of mind of the testator and undue influence exerted over him by the appellants. A great number of causes are assigned therefor in the motion for a new trial, some of which we will notice. One Emma Norris was called and testified as a witness on behalf of the appellants. The wife of the testator had been dead some years, and Miss Norris had been the sole housekeeper of the testator for several years since the death of his wife, up to and during the time when the will was made. She had testified to many acts, conversations and conduct of the testator during that time, and upon such facts had stated her opinion that the testator was of sound mind. She had also testified that during that time he was able to get into or out of a buggy alone and hitch up his horses, and that appellant, Valentine, was always kind and filial toward his father. Some days after she had thus testified on behalf of appellants the appellees recalled her, as they claimed, for further cross-examination, whereupon they propounded to her the following question: * * “While you were working for Mr. Noah Blough, did not Valentine Blough come there one day and tell his father that he wanted him to go to' Ellison’s bank, that he had some important business to transact, * * and — 466 — was not his father at that time sick and in his bed, and * * did not his father say to him: ‘I am not well enough to go and don’t want to go,’ that Valentine said Tap, it is important business and yon must go,’ and did he not take him out of bed, put his clothes on and put him into the buggy and drive off with him, * and did he not return with his father on the same day and help him ont of the buggy at the gate, and did his father * not crawl in on his hands and knees to the house and lie down upon the floor and cry bitterly and state that Valentine had taken him up to Ellison’s bank and had him sign some papers, that he didn’t know what they were, but supposed it was a will?” Over appellants’ objection that the question was not proper cross-examination, the witness was permitted to answer that she knew nothing of such happening. Appellees then propounded to her, to lay the foundation to impeach her, the following question: “Did you not have a conversation with Charles Parry and William Blough, at Noah Blough’s house', in the month of March, 1887, and did you not then and there state to them that some days before that Valentine Blough had come to his father’s house, and his father was sick and in bed, and told him that he wanted him to go with him to Ellison’s bank, that he had some important business to transact; that his father said he was not well enough to go and did not want to go, that Valentine said Tap, it is important business and you must go,’ that Valentine got his father out of bed, put his clothes on for him, took him out of the house and put him in the buggy and drove off toward Lagrange; that later in the day Valentine came back with his father, helped him out of the buggy and drove off; that his father crept into the — 467 — house on his hands and knees and laid down on the floor and cried bitterly and said that Valentine had taken him up to Ellison’s bank and caused him to execute'some papers; that he did not know what they were, but supposed it was a will?” Over appellants’ objection that the question was not proper cross-examination, she not having been examined on that subject in chief, and that the question was not proper for the sole purpose of impeachment, the witness was allowed to answer that she had no recollection of ever talking with them at that time, or any other time. The appellees then called said Charles Parry and William Blough and asked them if the witness, Emma Norris, had not made the statements attributed to her in the question at the time and place indicated therein, and they each answered that she had, over appellants’ objection that the answers were not sufficient ground for impeaching the witness, and that it was not competent to prove undue influence by impeachment. We think the court erred in permitting these questions to be answered. The witness, Emma Norris, had, it is true, testified to many facts tending to establish the soundness of the testator’s mind; but she had not testified to anything tending to negative the charge of undue influence in the procurement of the will, especially had she given no testimony on that branch of the case that was even inconsistent with her alleged statement to these two witnesses. One of the recognized methods of impeaching a witness is to prove that he has made statements out of court inconsistent with his evidence in court. It is not every statement made out of court by a witness that affords a ground of impeaching him. It is only such statements made out o-f court contraary — 468 — to the testimony of the witness in court, where such testimony relates to a material matter in issue. Paxton v. Dye, 26 Ind. 393; Seller v. Jenkins, 97 Ind. 430; Horne v. Williams, 12 Ind. 324; Fogleman v. State, 32 Ind. 145. But there must be contradiction between the statements alleged to have been made out of court and those made on the witness stand to afford a ground of impeachment by proving the statements made out of court. Seller v. Jenldns, supra. There was no such contradiction in this case. Therefore, there was no right to ask the question of the witness, Emma Norris, by the appellees for the mere purpose of laying the foundation for impeaching her. Conceding, without deciding that appellees did have the right to prove by her, or any other witness, the facts detailed in her alleged statement out of court to the two witnesses named at the proper time, because the other evidence discloses that on the day named in that statement the will was made in Ellison’s bank in the town of Lagrange, and that the statement, if true, would tend to prove one of the grounds specified in the complaint for setting aside the will, namely, undue influence exerted over the testator by Valentine and other appellants; but when appellants asked Miss Norris whether those facts as detailed in the alleged statement occurred, and she answered in the negative, that was the end of their rights in that direction. For the purpose of proving the facts mentioned she was the appellees’ witness. And though the statute authorizes a party in some instances to impeach his own witness, it has been held by this court, and, we think, correctly so, that such right only arises when the witness testifies to some matter prejudicial to the party calling him. Burns R. S. 1894, section 516 (R. S. 1881, section 508). In Hull v. State, ex rel., 93 Ind. 128, at page 133, this court said: “Where a witness does not — 469 — testify to anything prejudicial to the party calling him, there can be no object in impeaching him, and hence the statute cannot apply to such case. Nor can it apply to a case where a witness fails to testify to such facts as he is called to prove. Such testimony, though not beneficial, is not prejudicial, and, therefore, no reason exists for impeaching the witness.” The witness, Emma Norris, did not testify to the facts sought to be proven by her, and therefore no right arises to impeach her for her failure to testify to such facts. This alleged impeaching testimony, under the circumstances, probably had a prejudicial influence on the jury. The evidence in support of the charge of unsoundness of mind was sharply conflicting, and as it comes to us we cannot say that it was of such a character that the jury must have based their verdict on the conclusion that the preponderance thereof was with the appellees on the charge of unsoundness of mind of the testator when he executed the will, and therefore we cannot say that they did not base their verdict on the charge in the complaint of undue influence exerted by the appellees. We have been unable to find any evidence in the record tending to support the charge of undue influence, aside from the alleged impeaching testimony already mentioned. The court, of its own motion, gave seven long instructions on the subject of undue influence. One of them, the 10th, reads as follows: “10. The amount of undue influence which is sufficient to invalidate the will varies, of course, with the strength or weakness of the mind of the testator. The influence which would subdue and control a mind naturally weak, or one which had become impaired by age, disease, physical injury, family troubles and perplexity, or other causes, might have no effect to over — 470 — come or mislead one naturally strong and unimpaired. The influence that will avoid or vitiate the will of a testator whose mind is thus weak and enfeebled need only be such as would, and did, cooperate with such weakness and feebleness of mind to the extent of supplanting the free agency of the testator and induce him to do that which he would not have done in the absence of such undue influence, by reason of his being unable to refuse what was thus desired of him, or too weak to resist the influence in question. Hence, if you believe, from the evidence in this case, that the mind of the testator, Noah Blougli, at and before the time of the making of the will, had become thus weak and enfeebled, and that, by the degree of influence herein described, he was induced to make the will in controversy when he would not otherwise have made any will at all, or that he was induced thereby to make his will different from what he otherwise would have done, you should, in such case, find for the plaintiffs.” As before observed, there being no evidence of undue influence it was error to give the above instruction. It has been generally held by this court to be erroneous to give instructions to the' jury not applicable to the case proven by the evidence. Hill v. Newman, 47 Ind. 187; McMahon v. Flanders, 64 Ind. 334; Moore v. State, 65 Ind. 382; Nicklaus v. Burns, 75 Ind. 93; Summerlot v. Hamilton, 121 Ind. 87. There may be cases where such instructions may appear, from the record, to have been harmless. But it does not so appear in this case. In Nicklaus v. Burns, supra, this court said: “After the evidence has been heard and argument of counsel had, for the court to instruct the jury upon a state of facts not embraced in the evidence, nor discussed by counsel, is asking them to decide questions which have not been — 471 — submitted to them for trial. Jurors are liable enough to consider matters outside of the evidence, without being led off in that direction by instructions from the court. Such practice is well calculated to confuse and mislead the jury.” And in Hays v. Hynds, 28 Ind. 531, at page 537, this court said: “Instructions should be pertinent to the case. Juries are apt to assume, and are justified in assuming, that they are applicable. This could only be so upon the ground that Alexander acting as a pork-dealer was- doing business for the bank, and unless the jury utterly disregarded the instructions, it could scarcely fail to mislead them.” To the same effect is McMahon v. Flanders, supra. Here the only evidence that tended to establish undue influence was the evidence erroneously admitted to impeach the witness, Miss Norris. The instruction above quoted was immediately followed up with six more long instructions touching the subject of undue influence. If ever there was a case where the instructions were calculated to impress the jury that there was legitimate evidence before them upon a given point, when in fact none had been introduced, this was such a case. It is difficult to see how the jury escaped being led by the instructions to conclude that the evidence of the alleged statement of Miss Norris was legitimate evidence of undue influence exerted by Valentine Blough on the testator to make the will -contrary to his wishes. The admission of that evidence was reversible error regardless of the seven instructions on the subject of undue influence; and it was error to give the seven instructions on the subject of undue influence regardless of the question whether they were correct statements of law in the abstract, and regardless of the erroneous admission of the evidence mentioned. But when these two errors are combined they con — 472 — stitute more seriously prejudicial and controlling error. The prejudicial character of these two errors combined is intensified by the fact that the trial court nowhere in its instructions informed the jury that they could not consider the alleged impeaching evidence to prove the exercise of undue influence over the testator. The seven instructions on that subject implied that they could. Moreover, the appellants requested the court, at the proper time, to instruct the jury that they could not consider that evidence for that purpose, but the court, as the bill of exceptions informs us, refused to give such instruction. The 7th instruction, after alluding to the expert testimony of witnesses belonging to the medical profession in the case, says: “In weighing such testimony it will be proper for you to consider the degree of learning and skill possessed by such witnesses, their capacity to determine, as experts in that branch of knowledge, the probable or actual condition of the testator’s mind from the facts submitted, 'and the degree of harmony there maybe, or the opposite,between the facts stated in the hypothetical questions and those established by the evidence. In proportion to the degree of such harmony between the facts embraced in the hypothetical questions and those established by the evidence, and the skill and capacity of these experts, judging by the law of mind, to deduce therefrom just conclusions, will be the value and force of such testimony, and in view of all the facts presented to you by the evidence on those points, you will consider and determine what weight and effect you should give to such testimony. If you believe from such evidence, when considered in connection with all the other proofs in the case, that during the period of time in which the will of the testator was executed — 473 — he was of unsound mind, then it will be your duty in like manner to find for the plaintiffs.” The latter part of this instruction relating to unsoundness of mind we will consider in connection with the next, the 8th instruction. But the forepart of the 7th instruction was calculated to mislead the jury. It laid down too narrow and too inflexible a rule for estimating the weight to be given to the testimony of an expert, and limited too closely the various matters which the jury were entitled to consider in weighing such testimony. It gave too much prominence to the mere skill of the expert, leaving out of view his credibility, as exhibited by his conduct and bearing on the witness stand, and invaded the province of the jury in attempting to set too narrow limits to their exclusive province of judging of the value and force of such testimony. Cuneo v. Bessoni, 63 Ind. 524; Eggers v. Eggers, 57 Ind. 461; Durham v. Smith, 120 Ind. 463, at page 468. The 8th instruction is as follows: “It is not necessary, in order to avoid the will in question in this suit, that the mental unsoundness of Noah Blough, the testator, if it is shown to have existed, should have actually entered into or affected the will or caused its execution. It will be sufficient to avoid the will if the evidence shows to your satisfaction that at the time it was executed, the testator, Noah Blough, was a person of unsound mind, as the laws of this State do not permit a person of unsound mind to execute a will.” The latter part of the 7th instruction, the 2d, 12th and the 13th instructions declare the same proposition of law as that embodied in the 8th, above quoted; and they all and each of them state the proposition as unqualified as the 8th does, that is, that a person of unsound mind cannot make a valid will. — 474 — These instructions, by numerous repetitions of the proposition, in effect told the jury that if the testator was a person of unsound mind, even though such unsoundness was so slight that it did not impair his capacity to make an intelligent testamentary disposition of his property, or, in other words, that though the unsoundness was so slight that it had no influence or effect either in the production of the will or in the disposition of property therein provided for, the will would nevertheless be void. Notwithstanding the statute provides that “all persons, except infants and persons of unsound mind may make a will,” it has been the construction uniformly given thereto by this court for a long time that, “In legal contemplation, one who has sufficient mind to know and understand the business in which he is engaged, who has sufficient capacity to enable him to know and understand the extent of his estate, the persons who would naturally be supposed to be the objects of his bounty, and who could keep these in his mind long enough to, and could, form a rational judgment in relation to them, is a person of sound mind. If he has not mental capacity to this extent, he would not be a person of sufficient disposing mind.” Lowder v. Lowder, 58 Ind. 538. In Durham v. Smith, supra, the following instruction came in question: “6. Furthermore, I instruct you that a person who is of unsound mind is incapable of making a valid will, and if there is unsoundness of mind, it is not necessary for the contestant to show that such unsoundness had anything to do with the manner of disposing of the property. In such a case the will is invalid, whether it is shown that the unsoundness of mind had, or had not, affected the character of the testament.” This court said: “By adding the words fin such a case the will is invalid, whether it is shown that the unsoundness had or had — 475 — not- affected the character of the testament,’ it changed the scope and meaning of the instruction, and was, in effect, telling the jury that, upon considering all the evidence, if they came to the conclusion there was any unsoundness of mind, or defect of any character in the mind of the testatrix, no difference to what extent such defect affected or impaired the mind, or whether it in any way affected the disposition of the property devised or the making of the will, the will would be invalid; and this, too, even though the evidence might affirmatively establish the fact that such defect in no way entered into the makiug of the will or disposition of the property, and that she had at the time sufficient mental capacity to make a valid will. In short, this charge recognizes but two conditions of the human mind, one sound and capable of doing all acts, and the other unsound and incapable of doing any act; that a person is responsible for all his acts, or not responsible for any of his acts. This is an erroneous theory of the law. Trumbull v. Gibbons, 51 Am. Dec. 253; Clark v. Fisher, 19 Am. Dec. 402; Jackson v. King, 15 Am. Dec. 354, and note 363. * * * It is evident that a person might be possessed of the requisite capacity to make a will, as held in Lowder v. Loioder, supra, and yet have some defect of the mind, some delusion in relation to some subject entirely foreign to the execution of the will, the disposition of the property, the devisees, or those who are the natural objects of his bounty. It is not necessary that we point out in this opinion what particular defects or delusions there may be in a testator’s mind, and yet he possess sufficient mental capacity to make a valid will; it is sufficient if there may be any to render the instruction under consideration erroneous. * * * We think — 476 — the instruction clearly erroneous, and ought not to have been given.” In Burkhart v. Gladdish, 123 Ind. 337 (343), Coffey, J., speaking for the court, said: “It is not to be denied that a person may be possessed of delusions and yet be capable of making a valid will.” This court, in that case, overruled, and we think correctly. Eggers v. Eggers, supra, in effect on the point in question. In the recent case of Wallis v. Luhring, 134 Ind. 447, at pages 449 and 450, this court said: “The court very properly avoided confusing the minds of the jury on this point, and instead detailed very fully the various forms of disease, all included under the terms ‘unsoundness of mind.’ * * * Names are not of so much consequence as things, and it was more important that the jury should understand the character and degree of mental infirmity which would incapacitate a person from making a will, than to know whether the disease should be called insanity, unsoundness of mind, imbecility, or by some other name.” It is, however, not denied by appellees’ learned counsel that the 8th instruction standing alone would be error. But they contend that under’ the authority of Durham v. Smith, supra, and Burkhart v. Gladdish, supra, the instruction is so modified and explained by two accompanying instructions as to make it harmless, if not technically correct. Those instructions are numbered 2 and 3. No. 2 reads thus: “Under the laws of this State, a person of unsound mind cannot make a will, and a person of unsound mind means an idiot, non compos, lunatic, monomaniac, or distracted person.” This explanation is no clearer or plainer than the instruction that it is to explain or modify. Eon compos is defined by Webster as a person of unsound — 477 — mind. That is one of the definitions of the word. But if there is any explanation or modification of the 8th instruction in the 2d it is all taken away by the 3d, which reads as follows: “The evidence given on behalf of the plaintiffs tends to show that the testator, at the time of making the will in question, was feeble in body and mind; that he was subject to delusions, and that his memory and reasoning powers were impaired, and that he was of unsound mind. In order that you should find for the plaintiffs, it is not necessary for the evidence to show that the testator was a maniac or madman, or crazy, as that word is popularly used, nor that he was a fit subject for a lunatic asylum; but if the evidence shows that he did not possess mind enough to know the extent and value of his property, the number and names of the persons who were the natural objects of his bounty, their deserts with reference to their conduct generally, and treatment of him, their capacity and necessity; or that he did not have sufficient memory to retain all these facts long enough to have his will prepared and executed, then he was of unsound mind, and you will find for the plaintiffs.” Had this instruction told the jury that if the testator had and was possessed of the measure and degree of mental capacity therein described when he made the will, he was of sound mind, there would be some ground for the contention that the 8th instruction was modified or explained thereby so as to render it harmless, if not technically correct. But it did not do so. On the contrary, it simply told the jury that if he did not have and possess that measure and degree of mental capacity he was of unsound mind. That in no way modifies or explains the statement that if he was of unsound mind when the will was made it is void. That is in no way inconsistent with or a modi — 478 — fication of the idea couched in the 8th instruction, that if the testator was of unsound mind when the will was made, however slight or small the degree, the will was void. It only differed from the 8th instruction in that it told the jury that in the absence of a certain degree or measure of mental capacity the testator would be of unsound mind. Had it told the jury that if the testator had that degree of mental capacity when he made the will, then he was of sound mind, a very different question would be presented. There would then have .been some ground for the contention that the 3d instruction explained what was meant in the 8th instruction by the phrase “unsound mind.” The 2d and 3d instructions did not explain or modify the 8th and other instructions, announcing the same legal proposition, or cure the error therein. We, therefore, hold that it was error to give each one of said instructions. The 3d instruction asked by the appellants and refused by the court was erroneously refused. It reads thus: “Every person is presumed to be of sound mind until the contrary is shown.” This instruction correctly stated the law and ought to have been given. Greenley v. State, 60 Ind. 141; Guetig v. State, 66 Ind. 94. Appellees’ learned counsel concede that the instruction ought to have been given, and that its refusal was probably an oversight on the part of the court. They, however, contend that the error was cured by an instruction “that the burden is on the plaintiffs to show by a fair preponderance unsoundness of mind.” They contend that the above statement embodies the idea that the law presumed sanity. That position cannot be maintained. In many civil cases the burden of proof rests upon the plaintiff. In such cases it is correct to instruct the jury that before the plaintiff can — 479 — recover he must prove his cause of action by a fair preponderance of the evidence. And yet, according to appellees’ contention, that is tantamount to telling the jury, and that the court may tell the jury, that the presumption is in favor of the defendant, that the plaintiff has no cause of action against him. That is not the law. That a preponderance of the evidence must be adduced by the party having the burden of proof to justify a recovery by him does not mean that a presumption arises in favor of the adverse party that no cause of action exists. In such a case there is no presumption either way. The court erred in refusing the instruction, and the error was not cured by the instructions given. There are other errors in the instructions, but they are such as may not be committed on another trial, and, therefore, we will not extend this opinion by passing upon them. The witness Pearson testified in chief on behalf of appellees to having lived with and worked for the testator for a period of about three years, commencing in 1879 and ending in 1883; that he had then gone west and remained in Wyoming for about three years, coming back in 1886; that during the fall and winter of 1886-7 he visited the testator’s house frequently, and that testator could not recognize him or be made to understand that he ever had known the witness. The witness detailed many facts tending to show that the testator was a physical and mental wreck and was of unsound mind. On cross-examination, in answer to proper questions, the appellants offered to prove' by the witness that the visits of the witness to the house of the testator at the time mentioned by him were ostensibly as a suitor for the hand of Miss Norris, the testator’s housekeeper, and that testator was trying to guard Miss Norris against the addresses of the witness, and that the witness knew it; that during those — 480 — visits the witness for some time was trying to borrow money of Miss Norris, the old man knew it and was advising her against lending him the money, and that was the reason why the old man treated the witness as he did at his house, and the reason why he did not want him there, and the witness knew it, and that the witness did finally, during said visits, succeed in getting $500 of the girl under a promise of marriage, and has never paid it back. The court sustained appellees’ objection to these questions and the proposed proof. In defense of this ruling appellees’ learned counsel have only to say: “But to go into the merits or demerits of said Pearson’s conduct toward said Emma Norris, we insist, was entirely outside of the issues in the case.” Evidently counsel treat the proposed cross-examination as an attempt to impeach the witness. But it is nothing of the kind. A witness may be impeached, as we have already seen above, by proving statements made out of court inconsistent with his evidence in court, but the point of contradiction must be material to the issue. And so, too, a witness may be impeached by proving his general moral character to be bad, but not by proving particular acts of good or bad conduct. Long v. Morrison, 14 Ind. 595; Cunningham v. State, ex rel., 65 Ind. 377; Meyncke v. State, ex rel., 68 Ind. 401; Rawles v. State, ex rel., 56 Ind. 433; Bessette v. State, 101 Ind. 85; Spencer v. Robbins, 106 Ind. 580. But a wider latitude is permissible in cross-examination merely. In Wachstetter v. State, 99 Ind. 290, at page 296, it was said: “In other words, counsel imply, if they do not assert, that there is no proper or legal connection between a man’s reputation for truth and veracity and his reputation for integrity or honesty; that, while he may have the reputation of being a — 481 — thief and a highwayman, his reputation for truth and veracity may still be good. * * Truth or veracity is a trait of the man of integrity or honesty; it is never a trait of the thief or robber. * * * * When Stap and Wilson had testified that the reputation of Lee for truth and veracity was good, it was competent to show, upon cross-examination, that Lee had been repeatedly under arrest or in the station house on a charge of felony.” In Bessette v. State, ex rel., supra, this court said: “It is proper within the bounds of propriety, to be controlled by the trial court, that the character and antecedents of a witness may be subjected to a test on cross-examination, and that questions which go to exhibit his motives and interest as a witness, as well as those tending to show his character and antecedents, should be allowed.” In Spencer v. Robbins, supra, it was said: “The rule is well settled that specific acts of immorality cannot be proved for the purpose of impeaching the moral character of a witness. It may be proper, however, under extraordinary circumstances, to ask questions of a witness on cross-examination for the purpose of showing his character and antecedents. Bessette v. State, ex rel., supra; City of South Bend v. Hardy, 98 Ind. 577 (49 Am. Rep. 792). This is a matter, however, within the sound discretion of the nisi prius court, to be exercised in each case as necessity may seem to require. In order to justify a reversal there must have been a clear abuse.” In City of South Bend v. Hardy, supra, this court said: “If the cross-examination tends merely to disgrace the witness, but relates to a collateral and independent fact, and goes clearly to the credit of the witness, whether in such case he has the privilege to decline or not, the matter so far rests in the discretion of the — 482 — trial court that in the absence of the claim of privilege, if the question relate to a matter of recent date and would materially assist the jury or the court in forming an opinion as to his credibility, the conrt will usually require an answer, over the objection of counsel, but may sustain an objection.” So far as these questions went to explain the reason why the testator acted and treated the witness as he did it was proper cross-examination, and it was reversible error to sustain the objection; but as to such questions as related to his previous character and antecedents the result of our decisions is that this matter rested in the sound discretion of the trial court, and unless we can say that there was a clear abuse of that discretion the ruling is not reversible error. We are unable to say that the court abused its discretion as respects those questions. We are of opinion that the circuit court erred in . overruling the motion for a new trial. The judgment is reversed and the cause remanded, with directions to sustain the appellants’ motion for a new trial. Filed March 19, 1895.