Mitchell v. Walton

Ewbank, C. J. The complaint alleged that the will of 'Thomas C. Walton, deceased, was unduly executed, that it was procured by undue influence, and that at the time it was executed the testator was of unsound mind. No evidence of its undue execution was introduced, and the evidence showed, without conflict, that the will was signed by the testator in the presence of witnesses who signed in his presence, and that all the required legal formalities were observed in executing it. Several witnesses testified to facts and opinions tending to prove that the testator was of unsound mind, and others testified to facts and opinions tending to establish that his mind was sound. The jury answered an interrogatory by finding that he was not a person of unsound mind at the time he executed the will in controversy. They also answered “yes” to an interrogatory asking whether the testator, at the time he executed the will, was “unduly influenced to execute the same,” and returned a general verdict finding [195] that the alleged will was invalid, and that the probate thereof should be set aside. Each of five of the appellants moved for a new trial for certain alleged reasons, reserved an exception when the motion was overruled, and has assigned that ruling as error. Among the causes for a new trial specified in each motion was the alleged fact that the verdict is not sustained by sufficient evidence. 1. The evidence being in conflict as to the alleged unsoundness of mind of the testator, and that part of it which tends to show that he was of sound mind being sufficient to prove the fact, if it stood alone, this court will treat his soundness of mind as established in determining whether or not the general verdict is supported by the evidence. Barr v. Sumner (1915), 183 Ind. 402, 411, 413, 423, 107 N. E. 675, 109 N. E. 193; Sourbier v. Brown (1919), 188 Ind. 554, 566, 123 N. E. 802; Standard Oil Co. v. Allen, Admr. (1920), 189 Ind. 398, 126 N. E. 674, 676; Cleveland, etc., R. Co. v. Baker (1920), 190 Ind. 633, 128 N. E. 836, 838; Evansville, etc., Traction Co. v. Spiegel (1911), 49 Ind. App. 412, 422, 94 N. E. 718, 97 N. E. 749. 2. And no evidence of undue execution of the will having been offered, the question as to the sufficiency of the evidence is narrowed to the inquiry whether or not there was any evidence from which the jury might legitimately infer undue influence. Appellants insist there was none. Except that a small devise was made to a granddaughter, and that nothing was given to the oldest son, Jabez, who is one of the appellees, the will devised all of the testator’s property to his children, giving the larger share to the appellee, Mrs. Ida Bass, part directly and part in reversion. There was evidence tending to prove that Mrs. Bass had shown her father certain letters from Jabez, and that her father had drawn an inference from the letters unfa [196] vorable to Jabez, and that in conversation with her he had accused Jabez of wronging him by acts done when a young man. Jabez, a plaintiff in the court below and an appellee here, offered himself as a witness, and over the objection of appellants to his competency was permitted to give evidence as to certain things that the testator said and did, and to state that in his opinion the testator was of unsound mind. Counsel for the appellees point out that some of his testimony tended to show that the inference drawn by his father from the letters was incorrect, and that Mrs. Bass knew Jabez was not really guilty of the acts of which the father accused him. And they suggest that from these facts the jury might infer that Mrs. Bass encouraged her father in an unfounded belief which influenced him to bequeath Jabez nothing, and cite authorities to the effect that if she induced the testator to believe things to the discredit of her brother which were false, and that belief influenced him to leave the brother nothing, it amounted to undue influence. 3. But Jabez was not a competent witness on the subject of undue influence. And, his evidence being admitted, over an objection to his competency, to establish the alleged unsoundness of mind of the testator, such, evidence cannot be invoked to sustain a verdict finding that the will was procured by undue influence. McDonald v. McDonald (1895), 142 Ind. 55, 87, 41 N. E. 336; Wiley v. Gordon (1914), 181 Ind. 252, 259, 104 N. E. 500; Long, Exr., v. Neal (1921), 191 Ind. 118, 132 N. E. 252. 2. Except in the way of inferences based, in part, upon the testimony of the appellee Jabez, counsel have not pointed out to us any evidence whatever tending to prove undue influence, and we have been unable to find any in the record. Without passing on the question whether or not the other evidence re [197] ferred to was competent to be considered on that issue, nor whether the suggested inference, if drawn, would sustain the verdict, we hold that the testimony of Jabez could not have any weight whatever as tending to prove undue influence or to support an inference that the execution of the will was procured by such means. And excluding it from consideration the verdict as to' that issue is not sustained by any evidence. 4. Appellants complain of the refusal of the trial court to give the jury their requested instruction No. 10, to the effect that testators are not required by law to mete out equal and exact justice to all expectant relatives in the disposition of estates by will, and that the motives of partiality, affection or resentment by which they may be influenced are not subjects for examination, and review by the courts. Counsel for the appellees admit that the instruction requested would have been a proper one, if given, but say that it was given in substance in two of the instructions which the court read to the jury. Neither appellants’ original brief nor their reply brief attempts to point out wherein the requested instruction differs from those that were given, and it appears that the court did give two long instructions as to the right of a person of sound mind to make an unjust and inequitable disposition of his property, no matter what were his motives, and telling the jury that certain acts might be done and influence exerted without making the will invalid. The difference between the instruction refused and those given is not sufficiently pointed out by appellants to call for a decision, of the question whether or not such refusal was reversible error. 5. Appellants ask the court, upon reversing the judgment to direct a judgment in their favor. But the error for which it must be reversed was overruling the motion for a new trial because of the [198] insufficiency of the evidence on two of the three issues submitted. The trial court was not asked to direct a verdict in favor of the appellant, and clearly it would have committed an error if it had done so. And this court ought not to do what the court below would have had no right to ’do. The judgment is reversed, with directions to grant a new trial.