182 Ind. 374 | Ind. | 1914
Lead Opinion
Appellee brought this action to resist the probate of the alleged will of Amanda J. Watson, deceased, for the reasons: (1) that at the time of the attempted execution of said will the testatrix was of unsound mind, and (2) that said will was unduly executed. The cause was tried by a jury which returned a verdict in favor of appellee and from a judgment on such verdict this appeal is prosecuted. The only error assigned is that the court erred in overruling appellants’ motion for a new trial and under this assignment appellants challenge certain instructions which were given to the jury.
The third objection to this instruction is also urged against instruction No. 3 given by the court of its own motion and in neither instance is the objection well taken. The cases of Steinkuehler v. Wempner (1907), 169 Ind. 154, 15 L. R. A. (N. S.) 673, and McReynolds v. Smith (1909), 172 Ind. 336, clearly establish the proposition that in a proceeding to probate a will, the burden of proving the due execution of the instrument and the testamentary capacity of the testator rests on the proponents and not on the objectors, if any there be. In the Steinkuehler case reference is made to Morrell v. Morrell (1901), 157 Ind. 179, in which it is suggested by way of argument that the burden of proving undue influence or unsoundness of mind is on the objectors to the probate of an alleged will, and the suggestion is expressly disapproved.
Objection is also urged against instructions Nos. 4 and 5 given by the court at the request of appellee. It appears, however, that these instructions were not properly copied into the original record and on petition by appellee, of which petition appellants were duly served with notice, correction has .been made by a writ of certiorari. The instructions are not now open to the objections urged.
The alleged errors, if any, in the remaining instructions given have either been waived by appellants’ failure to discuss them or are not of so serious a character as to require us to make particular reference to them. The charge as a whole stated the law fully and fairly and such errors as appear therein are not sufficient to warrant a reversal of the judgment, especially since we are not advised as to the evidence which such charge was designed to cover.
Judgment affirmed.
Dissenting Opinion
While the conclusion of the court, that in a proceeding to contest a will before probate, the burden is on the proponent of the will to prove that its execution was not procured by undue influence and that the maker of the will, at the time of its execution, possessed testamentary capacity, is supported by the eases cited in support of the proposition, I can not concur in the correctness of the conclusion. The case of Steinkuehler v. Wempner (1907), 169 Ind. 154, 81 N. E. 482, 15 L. R. A. (N. S.) 673, was a departure from what had been the law in this State before that time. Our statute (§3154 Burns 1914, §2596 R. S. 1881) gives the right to any one interested to contest the validity of a will and to resist the probate thereof and states the causes upon which the proceeding shall be based. Under it an action to resist the probate of a will on the ground of contest stated therein is merely an action to contest before probate and is entirely independent of the formal, ex parte probate. Curry v. Bratney (1867), 29 Ind. 195. In this case it was said in the opinion of the court written by Frazier, J.: “The statutory proceeding for trying the question of the validity of a will (2 G. & H. 558, et seq.) does not, it seems to us, involve any question as to whether the will has been admitted to probate. It may be instituted before probate or after. In either ease it raises simply the question of the validity of the will. In the first case the contest, if successful, prevents the probate, while in the last it revokes it. It attaches itself to and becomes a part of the proceedings of the probate, so that if the will has been previously admitted to probate, the court takes judicial notice of that fact; if it has not been admitted, the judgment rests without action until the will is offered for probate, if it has not been offered.”
Now the theory, that in a proceeding to contest a will before probate, the burden of proving the absence of undue
In Blough v. Parry (1896), 144 Ind. 463, 490, 491, 40 N. E. 70, 43 N. E. 560, it is held that the issue tendered, when a will is attacked for mental unsoundness, is testamentary incapacity and that the burden is on the one alleging it because sanity, testamentary capacity, is presumed. In that case it is admitted that outside of this State there is a conflict of decisions on this question, out, it is stated, the overwhelming weight of authority elsewhere is in harmony with our decisions. It is shown that the conflict had its origin in a rule of probate practice requiring the executor to offer some evidence of the testator’s mental capacity on propounding the will, and to examine the subscribing witnesses on that point, whether his capacity was or was not impeached. This rule of probate practice has never been given the authority of law by the approval of our Supreme Court but the contrary has been held in Herbert v. Berrier, supra. Such a rule can not overturn settled rules of evidence. In Teegarden v. Lewis (1896), 145 Ind. 98, 109, 40 N. E. 1047, 44 N. E. 9, it is said, “one who challenges the mental capacity of a testator or donor, has the burden of establishing the absence of the particular capacity in issue”. The court held in that case that “the capacity to execute a will is the perfect requisite for the execution of a gift inter vivos,” and, therefore, the proof of mental incapacity that would overthrow a will would invalidate a gift.
It has been considered that one claiming real estate as a gift by a deed had to sustain his title by proof of mental capacity of the grantor or that such deed was not procured by fraud or undue influence, except where a fiduciary relation existed, but, on the contrary, the burden has always been put upon the one attacking the deed on such grounds. It is difficult to understand why there should be a different rule applied to testamentary instruments. Section 3112 Burns 1914, §2556 R. S. 1881, withholds from persons of unsound
So it would appear that the law has ever been in this State, until the case upon which the majority opinion is based, that the burden is on the one alleging mental incapacity, fraud, duress, undue influence, and, in short, anything attacking the integrity of a will to affirmatively prove his allegation. I think we should return to the- salutary and just rule of placing the burden on whoever alleges unsoundness of mind, fraud, coercion, duress and undue influence, for the presumption is in favor of soundness of mind, honesty and fair dealing.
Erwin, J., concurs in this opinion.
Note. — Reported in 105 N. E. 900. On tile question of the necessity that witnesses see signature of testator, see 38 L. R. A. (N. S.) 161. As to the burden of proving sanity with relation to wills, see 30 L. R. A. 733. As to testamentary capacity, see 8 Am. Rep. 181. See, also, under (1) 40 Cyc. 1338, 1120, 1117; (2) 3 Cyc. 169; (3) 40 Cyc. 1359; (4) 40 Cyc. 1272, 1020; (5) 3 Cyc. 386.