187 Ind. 257 | Ind. | 1918
— A writing purporting to be the last will of John Puckett, deceased, was tendered for probate in the circuit court of Tipton county by appellants. Appellee, a daughter of John Puckett, filed objections to such probate on the ground that the execution of the will was obtained by undue influence, and also on the ground that John Puckett was of unsound mind at the time he executed the writing in question. At the conclusion of the evidence in opposition to the probate of the will, the proponent filed a motion for an order of court withdrawing the issue of undue influence from the consideration of the jury on the ground that there was no evidence to sustain such issue. Appellee consented that the motion might be sustained, whereupon the court withdrew from the further consideration of the jury the issue based on the allegation of undue influence in the
Appellants claim that some of the instructions to the jury were erroneous and prejudicial to their rights. The thirteenth instruction given by the court of its own motion is as follows: “When a man dies leaving no wife surviving him, but leaves children and their descendants surviving him, the law would ordinarily recognize such children and their descendants as natural objects of his bounty'when he executes his last will and testament, and if, without any reason, he either wholly or to any considerable extent disinherits any of the natural- objects of his bounty, such conduct upon the part of the testator becomes a part of the evidence which the jury trying a will • contest, such as this case, have the right to consider along with all of the other evidence in the case upon the issue of unsoundness of mind. If, therefore, you find from the evidence in this case, that at the time the instrument in question was executed by the decedent, John Puckett, he was the owner of an estate both real and personal, and left surviving him, among others, the plaintiff, Olive A. Folsom, his daughter, and you further find from the evidence that at the time of executing said instrument, the alleged will in question, there was no reason why he should, in disposing of his estate, discriminate against her, and you further find from the evidence that the alleged will does discriminate against her to any considerable extent, you may take that fact, if it be a fact, into consideration
The writer of this opinion was unable to assent to the rule announced in the case of Breadheft v. Cleveland, supra, and a further consideration of the question has
By the tenth instruction the jury were instructed on the subject of insane delusions and the effect of such delusions, if shown, on the will of testator. Appellant asserts that this instruction should not have been given for the reason that there was no evidence from which
Other questions presented may not arise on a retrial and, for that reason, they are not considered. Judgment reversed for error of the court in giving instruction No. 13, with instructions to sustain appellants’ motion for a new trial.
Myers, J., concurs in the personal views expressed by the writer of the opinion.
Note. — Reported in. 118 N. E. 955. Witnesses: statutes prohibiting a witness from testifying to a transaction with decedent, applicability to proceedings to probate or contest wills, Ann. Cas. 1914A 982. See under (1) 40 Cyc 1331,- (2) 40 Cyc 2322; (3, 4) 17 Cyc 209.