192 Ind. 193 | Ind. | 1922
Lead Opinion
The complaint alleged that the will of 'Thomas C. Walton, deceased, was unduly executed, that it was procured by undue influence, and that at the time it was executed the testator was of unsound mind. No evidence of its undue execution was introduced, and the evidence showed, without conflict, that the will was signed by the testator in the presence of witnesses who signed in his presence, and that all the required legal formalities were observed in executing it. Several witnesses testified to facts and opinions tending to prove that the testator was of unsound mind, and others testified to facts and opinions tending to establish that his mind was sound.
The jury answered an interrogatory by finding that he was not a person of unsound mind at the time he executed the will in controversy. They also answered “yes” to an interrogatory asking whether the testator, at the time he executed the will, was “unduly influenced to execute the same,” and returned a general verdict finding
Each of five of the appellants moved for a new trial for certain alleged reasons, reserved an exception when the motion was overruled, and has assigned that ruling as error. Among the causes for a new trial specified in each motion was the alleged fact that the verdict is not sustained by sufficient evidence.
The judgment is reversed, with directions to grant a new trial.
Rehearing
On Petition for Rehearing.
Appellees made the issues on which the case was tried by alleging that the testator was of unsound mind, as well as that the execution of the will was procured by undue influence. This gave them the right to introduce any evidence tending to prove his alleged unsoundness of mind which was competent for that purpose, regardless of objections interposed by appellants. But it did not make the testimony of parties adverse to the estate, thus put before the jury, competent to establish undue influence, and by that means to sustain a verdict setting aside the will, where the jury found specially that the testator was of sound mind.
The transcript discloses that over and over, when plaintiff Walton, in his examination as a witness,
The petition for rehearing is overruled.