149 Ind. 30 | Ind. | 1897
Lead Opinion
On June 30, 1894, Levi Putt died at Noble county, Indiana, the owner of lands involved in this action, leaving surviving him his wife and five children. Prior to his death he executed the will in controversy, whereby he devised to his wife certain parts of his lands for life, with a proviso that his three daughters and Corwin Putt, his son, take what remained of said property at her death. The residue of his property, real and personal, he gave to his two sons, Charles F. and Corwin Putt, with the provision that they pay to Martha Putt, his wife, a thousand dollars for the benefit of their three sisters. Under the terms of this will Corwin was to pay to his brother, Charles F., the sum of five hundred dollars, and it was further stipulated that said Charles F. and Corwin were to pay all legal claims existing against the testator at the date of his death. Charles F. was nominated as the executor of the will, and on July 9,1894, the will was probated in the Noble Circuit Court, and letters were issued to him as executor. The widow refused to accept the provisions made for her by the will, and elected to take under the law. On January 22, 1895, Charles F. Putt commenced this action for partition of the lands devised to him by said will, and to quiet his title thereto, making the appellees herein party defendants. Said plaintiff charged'in his complaint that all of the appellees, except Martha and Corwin Putt, claimed some title and interest in the
The paragraph then charges that this pretended will is invalid upon two grounds: First, that said Levi Putt, at the time of its execution, was of unsound
The errors relied on for a reversal of the judgment are based on the court’s overruling the motion to require the cross-complainants below to give bond, as heretofore mentioned, and in overruling the motion for a new trial.
It is first insisted by counsel for the appellant that the court should have required the cross-complainants to give the bond provided by section 2767, Burns’ R. S. 1894 (2597, R. S. 1881), in regard to contests of wills. This question is decided adversely to the contention of appellants in Mason v. Roll, Exr., 130 Ind. 260. In the case cited, the executor of the will instituted an action against the children and heirs of the testator to quiet title to certain lands, which the will directed him, as executor, to sell. The defendants in that cause, as in this, appeared and answered the complaint by a denial, and also filed a cross-complaint whereby they assailed the will through which the plaintiff claimed his right to quiet title to the lands, on the grounds that the testator at the time of its execution was of unsound mind, and that it was unduly executed. The court, on motion, struck the cross-complaint from'the files, for the reason that no bond was filed as required by the statute in question. On appeal, it was held that in this the lower court erred, and the judgment was reversed. The court, in its opinion, said: “We are of the opinion that the provision of the act (section 2596) regulating the contest iof wills, which requires the complaint, or ‘allegation
The appellant in the case at bar, by his complaint below, expressly tendered to the defendants an issue of title to the lands which he seems to have claimed under his father’s will, and thereby challenged them each and all, to assert and set up any legal or equitable defense, or claim of title, to the real estate adverse to his alleged claim, and had they failed to do so, they would have been thereafter forever barred by the judgment rendered in the action. Faught v. Faught, 98 Ind. 470; Reed v. Kalfsbeck, 147 Ind. 148; Finley v. Cathcart, post, 470.
These appellees having been by the complaint challenged to assert the interest which they claimed in the lands described in the complaint, and also to break down, if they could, the will, which was the foundation of the plaintiff’s title, had the right, as they did, to respond to such challenge and expose the
The other alleged erroneous rulings of the trial court discussed and urged upon us for reversal by the learned counsel for appellants, and which in any manner would even tend to show available error, have relation wholly to the first ground of invalidity alleged against the will, being that of mental incapacity of the testator, at the time of its execution. These arise out of the refusal of the court, at the request of the appellants, to submit to the jury certain interrogatories. The facts therein embraced, and to which appellants desired answers returned, related alone to the degree of mental capacity required under the law to make a valid will.
Also, the giving by the court to the jury of certain instructions, and its refusal to give others as requested by the appellants. All of such instructions
Among the interrogatories submitted at the request of the appellants are the following, with the answers of the jury thereto: “21. Was the testator, Levi Putt, at the time of signing, executing, and acknowledging the will in suit, under any insane delusion? Ans. Yes. 22. If you shall find that the testator, Levi Putt, was, at the time of signing, executing, and acknowledging the will in suit; subject to any 'insane delusion or delusions, what were they. Ans. He was under the insane delusion that his wife and daughters' were persecuting him when they were not. 23. If you shall find that the testator, Levi Putt, was, at the time of the signing, executing, and acknowledging the will in suit, subject to any insane delusion or delusions, did such insane delusion actually enter into or affect the will in any of its provisions or cause its execution? Ans. Yes. 24. Was not the said testator, Levi Putt,
The general verdict of the jury, finding in favor of the appellees on the second paragraph of their cross-complaint, was sufficient to support the judgment on both or either one of the grounds of contest in issue in the case. By the interrogatory last set out, and the answer returned thereto, it is affirmatively shown, we think, that the jury found by their general verdict that the issue of undue influence was sustained. The question is not, as to whether the special finding, under the interrogatory in question, is alone a sufficient finding of the ultimate fact of the undue execution of the will, but the inquiry is, will it suffice to disclose that the general verdict included a finding on the issue of such influence in favor of the appellees? This question, in the light of the interrogatory in controversy, must be answered in the affirmative. This fact being positively established, it follows that the will was the offspring of undue influence, and the judgment of the court declaring it invalid, and setting the same aside, was a correct, result. The judgment then resting, as it does, upon a sufficient ^foundation, independently of any finding on the issue or subject of mental incapacity of the testator at the time of the alleged execution of the will in suit, the latter, so far as it affects the result of this appeal, under the cir
In Minor v. Lumpkin (Texas), 29 S. W. 799, it is held, where it appears that a judgment is based on two grounds, or findings, either of which, independently of the other, is sufficient to support the judgment, it will not be reversed because the court erred, relative to one of such findings. In the case of In re Fenton’s Will, 97 Ia. 192, 66 N. W. 99, the probate of a will was contested on two grounds, first, mental incapacity; second, undue influence. The jury found in favor of the contestants on both. It was insisted in that appeal that the finding on the second was not supported by the evidence. The court, in course of its opinion, said: “If the finding as to either has support, the cause could not be reversed on the evidence. * * * * It is sufficient for us to say that we are so well satisfied with the evidence to support the finding that Mrs. Penton was not of sufficient mental capacity to make a will, that we need not consider the other question.”
The same doctrine is supported by the following
Complaint is made of certain questions propounded by the appellees to Doctor William Raby, on cross-examination. This -witness was called and examined by the appellant on the subject of the testator’s insanity, and the evidence sought to be obtained by the cross-examination, was on the same subject. The record, however, does not show that the witness responded to the questions in controversy, as propounded to him, or gave any evidence which was in any manner prejudicial to the appellant on any issue in the case.
It appearing that the judgment is amply supported and warranted by the finding upon the ground of undue influence, and is not in any way impressed with the alleged erroneous rulings of the court, it is therefore affirmed.
Dissenting Opinion
Dissenting Opinion.
I do not concur in the holding that a will may be contested upon a cross-complaint, in an action to quiet title, without the statutory bond. The holding that the statutory condition as to the time of waging a contest applies while that of the filing of a bond does not apply seems to me to be inconsistent. The right to contest is purely statutory, and, as has often been held, can only be waged by complying with the conditions upon which the right is given. These holdings may not be obviated and the statute evaded by waging the contest by cross-complaint instead of complaint, and without compliance with the conditions as to time and bond.