*1 participa- by appellants’ active reason is that second reasonably had been aware can inferred that tion it jurisdiction petition would of the Park Board through procedure that been conducted filed with and body. court the statement of this
We are 599, supra App. at Cluggish, Koons, (1896), 15 et al. v. pages 604-605, E. appellants’ property or her the benefit of “Shall she receive honestly money honestly done, expended,
labor making for without something acquires compensation? so, If then she wrong nothing, injustice It be done. would will system jurisprudence sanction be a lame would estoppel comes principle of here such a result. It is injustice.”, prevents the rescue and presently applicable to the facts in the case before us. Appellees’ previously to affirm motion which was held abeyance is denied. now
Finding error, judgment no reversible of the trial court is affirmed.
Judgment affirmed. J., Prime,
Cooper,
JJ.,
C.
Carson and
concur.
Reported in
[No. 1965. February 1, November 1965. Transfer denied 1967.] *2 Hamilton, both of Greens- Frank I. Hubert Wickens counsel, Ging Gemmer, Fauvre, Dongus, & burg, and appellants. Indianapolis, all for Donadío, Hooper, Sr., Virgil McCarty, James V. James J. Stanley Ice, Miller, Dona- Lawton James R. A. O’Neal counsel, Indianapolis, appellees. Ryan, dio all & judg- appeal comes to us on from a J. —This case CARSON, ment of The issues were tried the Franklin Circuit Court. jury ap- the court and were formed before without attacking validity pellants’ complaint paragraph of a of fraud and undue influence and certain deed reason appellee-defendant the answer of plaintiffs below, appellants herein, rule 1-3. The claimed question. of one Robert in the deed in heirs Viner Ralph Himlick filed The defendant E. died after the case was Himelick and his son John H. as administrator of the estate of E. Himelick susbstituted as a defendant. general giving judgment The court below entered a nothing by complaint. reason of their amended setting plaintiff-appellants filed their motion for new *3 by out that the decision of the court not sustained suffi- contrary cient evidence and that the decision of the court is overruling assigned to law. The motion for the new brings the as error and case before us. many assignment pointed has been out the
As times an that of the court is not sufficient evi decision sustained presents question no for the dence to us review when negative judgment. appeal is based on a assignment The that the decision of the court is question present rule to law does a for our review under the laid down in Pokraka v. Lummus 230 Ind. Co. E. 2d 669. order to understand the issues raised necessary pleadings in that abstract this case it is allegations complaint pertinent and the answer. certain allege they plaintiffs of Robert that were first cousins simple real he in fee of certain and that was the owner Viner complaint; that the date of estate described execution of the deed in and for more than six prior age, thereto he health months was advanced in feeble body influence, easily susceptible mind and both persuasion others; acts mind that he was of unsound incapable executing deed; a valid that the defendant Ralph duly practicing E. Himelick was a at- licensed torney associated with his son Himelick. com- John H. attorneys plaint alleges attorneys further that said were and confidential for Robert at the time of advisors Viner deed; part execution of the that a of other transactions as Ralph fraudulently defendant E. Himelick and with procured warranty deed exercise of undue influence May, 1951, day the real estate in 28th from on the conveying Ralph Robert Hime- Viner said real estate to E. lick; Ralph H. that defendants Himelick and John E. of Robert Himelick knew the weak and feeble condition Ralph corruptly and the defendant E. Himelick Viner con- trived and intended to defraud Viner out of his real position estate and defendant and his son used their attorneys personal continuous, as advisors exercise persistent Viner; and undue influence over Robert that E. Ralph pay promise pay Himelick did not nor and has not paid any .conveyance; whatsoever consideration day August, Robert Viner died intestate on the 15th leaving plaintiffs only law; these as his sole and heirs at plaintiffs; that the defendant claims an interest adverse to the re-conveyance disaffirmed the deed and demanded a to, pay any real amount estate and offered to owed paid Himelick in consideration defendant E. of said but that said offers were refused and complaint prayer conclude their with claim of the defendants be null and void and that the declared *4 quieted. plaintiff’s title to the real estate be defendant John H. Himelick as administrator of The denying all the estate of E. Himelick filed an answer allegations provisions complaint Su- preme rule 1-3. only argument appellant’s portion brief court namely
proposition presented decision of is that the assigned errors appellee has cross to law. The argument portion the contention appellee’s and brief herein, plaintiffs below, appellants failed is made that the prove alleged relationship grantor to the deceased Rob- right appellees ert attack the Viner. relationship
below to to their admissibility Viner and also the of certain evidence offered support relationship. of such assignment appellant We shall first discuss the assigned by appellees. then deal with cross errors presents The case opinion one main namely, in our whether or not as a matter of law action of the decedent constituted undue influence. feelWe be answered in the affirmative. Appeals
From the Texas Civil Court of in an writ- ten Chief Justice McClendon in the case of Bell v. Ramirez (1927), 655, following language: S. W. we find the
them and client is one of uberrima fides rests attorney.” “ [6] otherwise tween facie considerations of well-established presumed them in being cast, the course of the relation are public policy, rule that the relation of as matter of fradulent, the burden to show upon agreements law, upon attorney highest prima be language Attention is also called to the of Justice Nelson Ford the case Stockton v. 52 U. S. involving are few of the business relations of life “There higher attorney trust and confidence than that of generally honorably client, or, speaking, one more anxiously guarded by faithfully discharged; more few governed by morality principles law, justice; sterner duty them of the court administer and it is *5 260 corresponding spirit, in a ous, and to be watchful and industri- reposed to see that confidence be used thus shall not rights prejudice to the detriment or of the
bestowing it.” quote following language We from 98 A. L. R. 2d 1235: principle professional “It is a basic of conduct that an at- torney faithfully, honestly, consistently represent rights protect client, interest and of his and that he discharge is bound to his to duties his client with the strict- fidelity, highest good faith, est to observe the and utmost promptly and to inform client of known information important apparently apply to him. These duties to situa- attorney personal tions where an has transactions with the client, to the extent dealings closely, since the courts will scrutinize such attaching presumption a or undue of of fraud attorney where an takes a a influence from establishing presumption client, and a un- rebuttable of lawyer designated due where as one influence a will that a client.” he has chief beneficiaries of drafted for (Our emphasis) examining very complete note in We annotation that attorney including various courts an have criticized him- will, among being self in a as devisee these courts in Pennsylvania, Nebraska, Wisconsin, Jersey, New California Slayback In the case of Colorado. v. Witt et al. ques- N. E. court had before it the of undue influence tion where deed was involved in which conveyed real been estate had certain heirs at the exclusion discussing and our others fiduciary relationship requirement and the the fiduci- ary establish the absence of undue influence said at frequently duty most “This arises where the relations parties attorney client; are those of
between the .. .” before us do not think In the case the evidence upon nega- met the burden cast the defendant introduced presumption is our of undue influence and it tive of the trial court therefore that the decision to law should be reversed. cross two In connection with the errors we .conclude involved; first, competency propositions are basic concerning alleged relationship to second, Viner, the deceased the admis- sibility baptism records certificates and admission from the children’s home in Cincinnati. *6 question the
As to first we conclude the competent by of were witnesses were not barred reason being 2- provisions of the so called the dead man’s statute § Replacement, Burns’ as which reads follows: against devisees, “In all suits or heirs or founded on with, against, ancestor, contract or demand to obtain of, possession property, personal, title to or of real or right ancestor, of, or in such or to affect the same any manner, be neither to suit shall any prior competent as to matter which occurred witness of ancestor.” to the death pro question competency under the of witnesses passed examined and of the above statute has been
visions a num our this court in Court and exceptions are to the strict ber of cases. There several application earliest case which of the statute. The (1880), to Elliott et al. been able find is Clouse v. have decedent an heir In that case the witness was 302. through ap grantors of the deed which and one objected appellant to the pellees derived their title. The grounds naming testifying heirs on the witness occurring prior testifying to to matters the decedent was answering objection our In of the ancestor. the death Supreme Court said at objection. heirs is no force No can
“There
lifetime;
may
apparent,
heirs.
but not
there
heirs
invariably
heirship
death.”
question of
arises after
In
Bank,
the recent case of Citizens
Ex’tr. etc.
State
v.
Kelley (1959),
App. 376,
130 Ind.
162 N. E. 2d
the testi-
mony
appellee,
a child of the decedent
offered.
Objection
testify
competent
was made that she was not
to
anything
happened prior
to
to the death of the decedent.
passing upon
objection
In
this court said:
appellants state,
“As
objection
where the
right
is to the
testify
all,
the witness
to
at
for the court
pass upon
not
competency
is
as
testimony,
competency
but as to the
himself, citing
of the witness
State,
Steigerwald
ex rel.
v. Thomas
111 Ind.
515, 13
E.N.
35. See also State v. Hamer
(1936), 211 Ind.
570, 582,
An at all as to of decedent competent testify of a witness to during matter that occurred the lifetime properly is overruled where the witness as to some matters.” appellants competent We conclude therefore were deciding province witnesses. so we do not invade the credibility the trier of fact to determine the weight given testimony. objection dealing The second with the bap certificates of tism admission records from the .children’s home *7 Cincinnati, Ohio, opinion is not in our well taken. purpose might for which such records be ad
mitted should be well limited the trial court strictly the facts shown such prove records and not to issuable objectionable facts for which would be hearsay rule. admissibility There is a distinction between the of a record may face, for such facts as it probative show on its and its respect court, value with to the issues before the whether or prove disprove issues, not exhibit tends to or its materiality, relevancy subjects upon its which the court pass proper. if Evidence. 547 Jones §
263 trial decision herein stated the reasons For for new motion instructions reversed with court is granted. Judgment reversed. Faulconer, J.,
Prime, J., concur.* P. J., participating.
Wickens, not Rehearing for
On Petition petition for appellee’s examined the J. —We CARSON, peti- opposition to the rehearing appellant’s brief in and the rehearing. tion for petition in the stated none of the reasons
In our court. rehearing require further consideration for feel, however, appellee has misconstrued doWe Kroeger (1942), 111 Ind. language 54 of Castle v. following 43, 54, find the App. E. 2d where statement: go obliga and it . forward shifted “. . burden
tory upon use and benefit the him whose good faith, that he acted in to establish was made advantage superior position no that he took influence, .. .” rehearing petition for stated the reasons above For denied. Faulconer, J., J., concur.
Prime, P.
Wickens, J., participating. not Rehearing 2d 378. denied Reported in N. E. Note. — 2d 197. 211 N. E. argument at the time hearing participated Judge oral Martin *While of, present named, judges he was not above
a conference opinion. in, adoption participate of this not and did