142 Ind. 159 | Ind. | 1895
Elizabeth Weaver, a daughter of Anthony Culp, died February 18, 1892, and her only surviving child was the appellant Rosa Weaver. Thereafter, on May 23, 1892, said Anthony Culp executed his last will,, by which he directed the payment of his debts and the erection of a monument from his personal estate, and any residue thereof, he directed, should be equally divided among his children. His one hundred and sixty acres of land he devised, the south half to his wife, during her natural life, and the north half was to be rented and the proceeds applied to the taxes and repairs on the whole, and the residue paid in equal parts to his children. It was further provided that upon the death of the wife, the whole of said lands should be sold and the proceeds equally divided “among all of my children, share and share alike.” At the date of the execution of said will the said Anthony Culp had ten living children and the one grandchild, said Rosa Weaver, all of whom were living at the date of his death, to-wit: August 20, 1892. After the death of said Anthony Culp, the appellants brought this action to set aside said will, alleging unsoundness of mind and undue influence. One of the facts, upon which the appellants relied, was that though the testator knew of the death of his daughter, Elizabeth, and knew and was on friendly terms with the child, Rosa, he did not mention her name in said will, or make provision therein for her, either directly or as in her mother’s right.
At the trial the court gave, among other instructions, the following: “ It is undisputed that the decedent left
The question of the correctness of this charge is presented hy the record. The appellees insist that the instruction was too favorable to the appellants, in that, hy the law, Rosa was included under the designation of “children,” and that no presumption that she was forgotten, or was overlooked, was authorized. The appellants, on the other hand, insist that the instruction was harmful to them, in that it advised the jury that the law, notwithstanding the will otherwise disposed of the entire, estate, provided one-eleventh thereof for Rosa, and that the verdict could not defeat her in that provision. There can he no doubt that the word ‘ ‘children, ” having been employed here without manifesting an intent that it should include grandchildren, would not include the granddaughter. West v. Rassman, 135 Ind. 278; Pugh v. Pugh, 105 Ind. 552; Cummings v. Plummer, 94 Ind. 403.
That the law made, provision for the granddaughter, notwithstanding the disposition of the entire estate to the ten children, was, in our judgment, an error, and was such as might have prejudiced the rights of the appellants. Memory, that has sufficient strength to call to mind the objects of one’s bounty, and sufficient grasp to retain them until the will is executed, is always of supreme importance when inquiring as to test
This State, unlike many other States, has no statute pro-
The failure gets its strength as a circumstance from the improbability that, without cause, a father will disinherit his child, that he would be so unjust with those to whom his bounty is equally due, as to enrich some and leave others without a share. But if the child is not disinherited, and if that injustice is not done, but if the law, which all are presumed to know, has done what the father should have done, that very fact may have influenced the father to omit provision by will, excepting where he desired to make special provision, and to permit the law to control where he does not provide. Instead of becoming a circumstance betraying a weak memory, it might he regarded as a most rational view.
The instruction was erroneous, and we cannot say that it was harmless.
The judgment of the circuit court is reversed, with instructions to sustain the appellants’ motion for a new trial.