181 Ind. 299 | Ind. | 1914
Appellees instituted this action to set aside the will and ten codicils of Madison Brooks, deceased. The cause was submitted to a jury on the issue of the testator’s mental capacity when he executed the several instruments in question, and resulted in a verdict for appellants as to the original will and for appellees as to each of the codicils mentioned in the complaint. Appellants’ motion for a new trial was overruled and such ruling is challenged by the first assignment of error.
It appears from the evidence that Madison Brooks executed his last will and testament on January 17, 1896. Between that date and May 27, 1909, the day of his death, he added to said will eleven codicils, of which the eighth reads as follows:
“I, Madison Brooks, of Hamilton County, Indiana, make and publish this further codicil to my last will and codicils heretofore executed.
I hereby nominate and appoint my son Augustus Brooks sole executor of my will and codicils aforesaid and revoke all other appointments heretofore made.
In witness whereof I hereunto set my name and cause this instrument to be witnessed this 2d day of April, 1908. ' Madison Brooks.”
The application of these rules is best illustrated by reference to some of the decided cases. In Brown v. Riggin (1880), 94 Ill. 560, it appears that the testatrix executed a will and three codicils, all of which were duly executed. In a suit to contest the will and codicils on the ground of unsoundness of mind, the jury was so instructed as to require it to find the testatrix capable at the several times when the instruments in question were executed. This was held to be error, the court stating, at page 569 of the opinion, that “If the jury were satisfied of her capability at any one time, it should have validated the act then done, and the preceding acts by that means republished. ’’
The ease of Stevens v. Myers (1912), 62 Ore. 372, 121 Pac. 434, 126 Pac. 29, is very similar to the case at bar as will appear from the following quotation from the opinion therein, at page 397: “the allegation of the contestant’s complaint is, in substance, that at and for some time prior to the execution of the will the testator was not of sound and disposing mind or memory, and that during all of that time he labored under the delusion which she describes. No mention is made of the codicil in any manner; yet we find from the record that six months and more after the execution of the will the testator makes and publishes the supplementary testament, which does not disturb the bequest to his daughter, but only gives directions about how the portion bequeathed to his son shall be distributed, should the latter pass away before the death of the testator. It is not alleged that Myers was in any manner insane or subject- to any delusion at the execution of the codicil. The publication of the latter instrument amounts to an affirm
In O’Neall v. Farr (1814), 1 Rich. (S. C.) 80, 89, it is said: “Although the will, when executed, might be bad, or the testator might be non compos mentis, or under duress or undue influence at its execution, yet, if he was sane and free from duress or undue influence when he executed the codicil, that would be a republication and confirmation of the will, and would free it from the objection to which it was liable at its execution.” Other instances in which the doctrine of republication by codicil has been applied are to be found in: Cook v. White (1899), 43 App. Div. 388, 60 N. Y. Supp. 153; In re Emmons (1906), 110 App. Div. 701, 96 N. Y. Supp. 506; Crosbie v. Macdoual (1799), 4 Ves. Jr. (Eng. Ch.) 610; Brown v. Clark (1879), 77 N. Y. 369; Hawke v. Euyart (1890), 30 Neb. 149, 46 N. W. 422, 27 Am. St. 391; Jones v. Shewmaker (1866), 35 Ga. 151; Harvey v. Chouteau, supra; Murray v. Oliver (1849.), 41 N. C. 55; Whiting’s Appeal (1896), 67 Conn. 379, 388, 35 Atl. 268; Haven v. Foster (1833), 31 Mass. (14 Pick.) 534; Payne v. Payne (1861), 18 Cal. 291; Hubbard v. Hubbard (1902), 198 Ill. 621, 64 N. E. 1038; Van Cortlandt v. Kip (1841), 1 Hill (N. Y.) 590.
We cannot agree with appellees’ contention that this doctrine will not extend to a case where the codicil does nothing more than to appoint a new executor. The question does not depend on the purpose of the codicil primarily but on the capacity of the testator and, in a case such as the one at bar, an adjudication that the testator was of sound mind when he executed the codicil is sufficient to republish the will, even though the codicil is directory only and disposes of no property. Stevens v. Myers, supra; Crosbie v. Macdoual, supra; Francis v. Marsh (1904), 54 W. Va. 545, 46 S. E. 573, 1 Ann. Cas. 665.
Judgment is reversed, with instructions to sustain appel
Note. — Reported in 104 N. E. 505. See, also, under (1) 40 Cyc. 1360; (2) 40 Cyc. 1370; (3, 4) 40 Cyc. 1220; (5) 40 Cyc. 1219. As to codicils, what they are and their construction and effect, see 55 Am. Dec. 126.