173 Ind. 429 | Ind. | 1910
The will of Amelia Friedersdorf, after its probate, was adjudged invalid and void, at the suit of ap
Appellants have jointly and severally assigned as errors the overruling of (1) their demurrers to the complaint, (2) their motions for a new trial.
Appellants Leota T. Friedersdorf and Lillie Friedersdorf were joined as defendants to the action, but no allegation respecting them is found in the complaint. They severally demurred to the complaint for insufficiency of facts, but their demurrers were overruled. It is suggested in defense of these rulings that Leota T. Friedersdorf' and Lillie Friedersdorf are the wives of codefendants, having an interest in the subject-matter involved, as appears from the evidence. The omitted allegation was probably not called to the attention of the trial court, and if the complaint were attacked for the first time in this court we could doubtless look to the evidence to supply such omission. But when a party exercises his right to challenge a complaint by demurrer for insufficient facts at the inception of the litigation, the duty devolves upon the court of determining, as a matter of law, the sufficiency of its allegations as against the demurring party, and in deciding the question presented no aid can be sought outside the complaint. When the correctness of such rulings is brought before this court for review, it must be determined, so far as practicable, from the viewpoint of the trial court, without the aid of subsequent ..events or facts outside the complaint.
Appellees invoke the provisions of §700 Burns 1908, §658 R. S. 1881, to prevent a reversal of the judgment. This statute has been in force since the adoption of the code of 1852 (2 R. S. 1852, p. 162, §580). In
In the case of Sinker, Davis & Co. v. Fletcher (1878), 61 Ind. 276, 279, referring to the statute under consideration, this court said: “But we can conceive of no case in which a complaint will be deemed amended in this court, which is so defective as that a demurrer filed to it for the want of a statement of sufficient facts to constitute a cause of action, should be sustained, where the question here arises upon the correctness of the ruling below on the demurrer.” To the same effect are Utica Tp. v. Miller, (1878), 62 Ind. 230; Friddle v. Crane (1879), 68 Ind. 583; Johnson v. Breedlove (1880), 72 Ind. 368; Abell v. Riddle (1881), 75 Ind. 345.
In the latter case the court, by Woods, J., said: ‘ ‘ The exception having been saved to the ruling on the demurrer, the pleading cannot be aided by reference either to the evidence or to the verdict.” The statute having this interpretation impressed upon it was reenacted in the revised code of 1881 (§700, supra). See Cain v. Allen (1907), 168 Ind. 8, and cases cited. The holdings have been uniform, since the last revision that if a demurrer to an insufficient pleading is overruled, the error is not cured by this section. Pennsylvania Co. v. Poor (1885), 103 Ind. 553; Pennsylvania Co. v. Marion (1885), 104 Ind. 239; Belt R., etc., Co. v. Mann (1886), 107 Ind. 89; Ryan v. Hurley (1889), 119 Ind. 115; Chapman v. Jones (1898), 149 Ind. 434; Ervin v. State, ex rel. (1898), 150 Ind. 332.
The rulings on these demurrers were erroneous when made, and they must be held so by this court.
It appears from the evidence that the testatrix had some apprehension about eating articles of food brought to her by her daughters, and said to others that her sons had told her not to eat anything brought by her daughters, for the reason that they were seeking to poison her. This statement was confirmed by Mrs. Henderson, who testified that Conrad Friedersdorf requested her not to allow his mother to eat anything furnished by the girls. The testatrix did, however, eat such articles in company with Mrs. Henderson and the girls, upon requiring them to eat first. This suspicion of the testatrix was treated, upon the trial, as an insane delusion, and it was upon the evidence just referred to, that the jury found she was laboring under an insane delusion which controlled her in making the will.
In determining a question of testamentary capacity, the law takes cognizance of such delusions only as point to actual unsoundness of mind, or, in short, insane delusions. An insane delusion is a spontaneous conception and acceptance of that as a fact which has no existence except in the imagination, and which is persistently believed in against all evidence and probability. Rush v. Megee (1871), 36 Ind. 69, 80; Bundy v. McKnight (1874), 48 Ind. 502, 512; McReynolds v. Smith (1909), 172 Ind. 336; Steinkuehler v. Wempner (1907), 169 Ind. 154, 15 L. R. A. (N. S.) 673; Middleditch v. Williams (1889), 45 N. J. Eq. 726, 17 Atl. 8-26, 4 L. R. A. 738; Page, Wills, §§104-107; 1 Underhill, Wills, §91; note to Appeal of Kimberly (1896), 37 L. R. A. 261.
The jury found the testatrix to have been of unsound mind at the time of executing her will, and if this were shown to be her mental condition, independently of the alleged insane delusion, the verdict might be upheld, notwithstanding the error pointed out. The court advised the jury in instruction thirty-one, as follows: “The court instructs the jury that if it believes from the evidence that at the time the will in controversy was executed the testatrix was laboring under an insane delusion that her daughters, or any one or more of them, had attempted, desired or intended to poison her, and that she was influenced and controlled in the making of said will by said delusion, then the testatrix was not of sound mind and memory as is contemplated and required by the law, and any paper purporting, to be a will executed by her under such circumstances is not a valid and legal will, and the jury should And for plaintiffs.”
The jury regarded the belief mentioned as an insane delusion, and found that the will of the testatrix was thereby controlled, and in view of this instruction its finding that the testatrix was of unsound mind may have résted chiefly or wholly upon the error in treating the false belief as an insane delusion. In lieu of the instruction before quoted, and others on the same subject, the court should have given ap
The instructions were generally fair and accurate statements of the law relevant to the issues, but since the judgment must be reversed for the errors pointed out, and another trial be had, it is deemed appropriate to consider appellants’ criticisms of two other instructions given. In the sixth instruction the jury was charged that “a testator should possess sufficient mind and memory to know the exact extent and value of his property,” etc. This departure from the accepted definition of testamentary capacity cannot be commended or approved. Many of our most capable business men could scarcely be expected to know at any given time the precise or exact extent and value of their property.
Instruction sixteen, given at the request of appellees, was as follows: “When a person receives the larger share of the property of a testatrix by her will, and the will is made for the chief benefit of such person in whom the testator reposes confidence and trust at the time of the execution of the will, and she was accustomed to take the advice of said beneficiary, and such beneficiary causes the will to be prepared, and the will is unduly procured in his own favor by such beneficiary, then a presumption of law arises that the will was procured by the undue influence of such beneficiary, which presumption must be overcome by other evidence in the ease that the execution of the will was the result of the free deliberation and judgment of the testator.”
The judgment is reversed, with directions to sustain appellants’ motions for a new tzüal, and to sustain the demurrers of appellants Leota T. Friedersdoz’f and Lillie Friedersdorf to the complaint, and for further proceedings not inconsistent with this opinion.