191 Ind. 118 | Ind. | 1921
Appellees filed a complaint to contest the will of appellant’s decedent, Sarah A. Neal, for the alleged reasons that (1) she was of unsound mind; (2) that execution of the will was procured by undue influence; and (3) that it was unduly executed. Appellant answered by a denial, and by a second paragraph addressed to the complaint as a whole, alleging that two of the six plaintiffs (appellees) had each accepted a legacy paid to them under the provisions of the will and retained the same.
Moreover, the record discloses that two weeks after the demurrer had been sustained to appellant’s second paragraph of answer, he filed another paragraph addressed only to the complaint by one of the plaintiffs, pleading the same facts in defense of the suit by that plaintiff which had been pleaded in the second paragraph as a bar to the entire action. This constituted an amended answer, notwithstanding it was called a “third paragraph,” and filing it amounted to a waiver of the exception on which appellant relies. Western Union Tel. Co. v. Burris (1921), 190 Ind. 654, 131 N. E. 521; Humphry v. City Nat. Bank (1921), 190 Ind. 292, 130 N. E. 273 and authorities cited.
Appellant duly filed a motion for a new trial by which he challenged the giving of certain instructions and the refusal to give, certain others. This motion was overruled and appellant excepted, and has assigned the ruling as error. The first instruction asked and refused was to the effect that there was not sufficient evidence to sustain the charge that the execution of the will was procured by undue influence. Of the instructions given, one (No. 9) requested by appellees and three (Nos. 12, 13, 14) prepared by the court told the jury what would constitute undue influence, and submitted to the jury the question whether the testatrix was influenced by false
Appellant’s brief purports to set out the evidence, but sets out none whatever that even remotely tends to establish undue influence. Appellees’ brief supplements this recital of the evidence, but does not set out competent evidence bearing on that subject. Appellees say only that “legatees of almost the entire estate, a travel-ling doctor and one Baker, who says he signed the alleged will, at the request of the doctor, were the only ones around a sick, dying, insane woman when it is claimed she signed the alleged will.” But the testatrix sat up in bed to sign the will, and did not die until more than ten weeks after the will was dated. Baker owned an adjoining farm bought by his father; he gave no such testimony as is suggested; and the doctor had lived in Helmsburg two years at the time of the trial. We fail to see how an inference of undue influence could arise from these facts.
A careful reading of the entire bill of exceptions discloses that there was no evidence of undue influence given by any witness competent to testify on the subject, but that, over an objection to the plaintiffs’ competency for that purpose and under an express ruling by the court that they could only testify to the unsoundness of mind of the testatrix, one of the plaintiffs (an appellee) testified that Oliver Neal, the son to whom a larger share of the estate was devised, used a “wiji” (ouiji) board in directing the affairs of testatrix, telling her what it said should be done. It was shown that for several years before her death the testatrix and Oliver lived near each other, and part of the time she lived in his home; that her home was across the road from his and that a member of his family al
In an action to contest a will, where there is no competent evidence to support the charge of undue influence, it is error to give instructions submitting that issue to the jury. Blough v. Parry (1896), 144 Ind. 463, 469, 470, 40 N. E. 70, 43 N. E. 560. Where evidence of unsoundness of mind was before the jury which was not competent to prove undue influence, but might be understood as tending to show that undue influence was exercised, the proper course would be to-withdraw the issue of undue influence from consideration by the jury. Stevens v. Leonard, Exr. (1900), 154 Ind. 67, 72, 75, 56 N. E. 27, 77 Am. St. 446; Young v. Montgomery (1903), 161 Ind. 68, 69, 70, 67 N. E. 684; Barricklow v. Stewart (1904), 163 Ind. 438, 443, 444, 72 N. E. 128.
The will was dated May 11, 1915, and both the subscribing witnesses testified that it was signed and witnessed on that day. There wás undisputed evidence that the testatrix died on July 26, 1915; that she was
There was evidence that one of her daughters lived within five miles of her, and had a horse and buggy, but had called upon her or spoken to her only once in the six years preceding her death; that the husband of this daughter had managed her farm two or three years while she was in Nebraska, and had spent most of the rents for fencing and other improvements, and she was dissatisfied because he did not send her more money; that a son lived two miles from her home the last four years, and saw her about once a month, and that after being at his home a few days not long before she died she went to board in the village where he lived, and he did not go to see her where she boarded, because he was not on good terms with the woman who kept the boarding house; that one of her sons who had lived in Nebraska with her went away from their home, and when he returned three weeks later she had come to Indiana; that her youngest son, who lived in Nebraska, had repeatedly refused to come back to live with her in Indiana when she wrote asking him to do so; and that the other daughter was married and lived in Nebraska from the time the testatrix came back to Indiana until her death.
This was an invasion of the province of the jury. Breadheft v. Cleveland (1915), 184 Ind. 130, 108 N. E. 5, 110 N. E. 662; Jackson v. Folsom (1918) , 187 Ind. 257, 118 N. E. 955. It might not be improper for a court, in discussing the admissibility of evidence that a child was disinherited in whole or in part without apparent cause, or in passing on the sufficiency of evidence to support a verdict setting aside a will, to use language similar to what was used in this instruction. But not every statement used in argument, is proper to read to the jury as an instruction. And the question whether all the children bore such a relation to the testatrix at
The judgment is reversed, with directions to grant a new trial.