43 Ind. 1 | Ind. | 1873
Lead Opinion
This was an action commenced by Harriet Graham and others, against the appellants and Rhoda Ann Rabb, Mary Benner, Daniel Benner, Olive Davidson, Edward Davidson, Charles Rabb, Frank Rabb, Garrett Rabb, Webb Rabb, and Grace Rabb, to contest and set aside the last will and testament of Johnson Rabb, deceased. The parties are the children and grandchildren of the deceased. Issues were formed, and a trial by jury resulted in a verdict against the validity of the will, on which, after a motion for a new trial had been made and overruled, there was judgment setting aside the will, and for costs against all the defendants. The clerk’s entry shows that the defendants prayed an appeal,'.which was granted on filing bond in a designated amount, with certain designated persons as security, within sixty days, from the date of the judgment, which was at the May .tei-m, 1870. This appeal was not perfected, .but on the 19th day of January, 1871, a transcript was filed in this court, and errors assigned thereon by John Rabb, Smith Rabb, Levi Rabb, and Franklin Rabb, against Harriet Graham, Ferguson Graham, Margaret Sharon, John H. Sharon, Ancher Dunkerly, William Dunkerly, Rhoda Ann Rabb, Mary Benner, Daniel Benner, Olive Davidson, Edward Davidson, Charles Rabb, Frank Rabb, Garrett Rabb, Webb Rabb, and Grace Rabb, alleging that the appellees who were defendants below, refusing to join in the appeal, are made appellees by the appellants. A summons or notice seems to have been taken out against, and is returned served on, the
The submission is set aside, that there may be further process.
ON RESUBMISSION.
This was an action by the appellees against the appellants to contest the will of Johnson'Rabb, deceased, and to set aside the probate thereof. The objections urged against the will are :
1. That the deceased, at the time of making it, was of unsound mind.
2. That, he was, at the time, .under improper restraint and influence of the defendants, John Rabb, Levi Rabb, Smith Rabb, and Franklin Rabb.
3. That, at the time, he was under the influence and control of the last named defendants, and that the execution of the will was procured by their undue influence,and control.
4. That its execution was procured by and through the deceit, fraud, improper influence, and duress practised and imposed upon the testator by said last named defendants.
A copy of the will and the probate thereof is made part of the complaint.
There was an issue of fact formed by a general denial, which was tried by a jury, and resulted in a verdict against the validity of the willi A motion for a new trial, assigning thirteen reasons therefor, was made by the defendants and overruled by the court. Final judgment was rendered for the plaintiffs. The error assigned is the overruling of the motion for a new trial.
We shall examine such of the questions presented by the motion for a new trial as are necessary to the decision of the
The deceased was the owner of both real and personal estate. The will is attested by George H. McNeil, John Dunlap, and Thomas H. Smith. William Conover was appointed executor, and John Rabb in case of the decease of Conover.
By his will the deceased directed that his debts and funeral expenses be paid out of his personal estate. His real estate, valued at eight or ten thousand dollars, he devised to his four sons, John, Smith, Levi, and Franklin Rabb. To his daughter, Mary Benner, and his daughter-in-law, Rhoda Ann Rabb, widow of a deceased son, he gave five hundred dollars each, which amounts were to be paid by the sons, and were charged upon the lands devised to them. To his son, Franklin Rabb, he bequeathed all the personal estate'. To his daughters, Harriet Graham and Margaret Sharon, and his granddaughter, Ancher Dunkerly, he gave no part of his estate. The disinherited daughters and granddaughter, with their husbands, are the parties contesting the will. The personal estate, according to the inventory, which was in evidence, amounted to about one thousand and fifty dollars. What the funeral expenses and debts of the deceased amounted to does not appear.
The undue influence is charged to have been exercised by the sons of the deceased, the principal devisees. As one of the reasons for a new trial was the insufficiency of the evidence to justify the verdict, it is necessary that we should go through the bill of exceptions and ascertain what the evidence was, which was given to show the existence and exercise of undue influence, as well as that tending to show a cause for the exclusion of the two daughters and the granddaughter from any participation in the estate.
Shortly before the death of the wife of the deceased, he
A difficulty which occurred between Mrs. Sharon, and Mrs. Graham, two of the daughters, and Franklin Rabb, in March, 1868, at which Sarah D. Hutchins was present, is regarded as an important element or circumstance in the case. Mrs. Sharon says that she and her sister, Mrs. Graham, went to the house to see their mother, who was sick; that she was not able to get out of bed. There were at home Franklin Rabb’s wife, the hired girl, Sarah D. Hutchins, and her mother; that when they went in no one spoke. She went to where 'her mother was in another room, and after a while Franklin came in and told them to go out. She said to him
Sarah D. Hutchins testified, that she was at the house of Frank Rabb, when Mrs. Sharon and Mrs. Graham came
Nelson Crane testified, that John Rabb stated after the' above named difficulty, “ there will be a will made now.” Mrs. Crane, on behalf of the defendants, testified, that Sarah D. Hutchins told her within a day or two after the trouble at Frank Rabb’s, that the fuss was begun by Harriet Graham going to the door of the room where Mrs. Frank Rabb was, and that when Mrs. Frank Rabb looked up, Mrs. Graham said to her, “It is not you I am looking for, you b — ch.”
Mrs. Elizabeth Crane testified, that Sarah D. Hutchins related to her the origin of the difficulty in the same way. John Rabb testified to the same, and also that Frank went to live on the homestead with his father upon the advice and at the request of himself and Levi, after Mrs. Graham had declined to go. He also testified, that he never used any persuasion or any inducement of any kind, or any influence
Sarah Conover testified, that she saw Ancher Dunkerly riding by the house of the deceased, with her husband, on the day of the funeral of the wife of the deceased; that they went by fast; that the deceased saw them as they went by, and said: “ It would have been for Ancher’s own good if she had come in. I’ll fix my property, if I can, so that the girls won’t get any of it.”
Levi Rabb testified, that he used no influence to get his father to make a will. He heard him say he intended to make a will.
Frank Rabb testified as follows : “ I was out at the sugar camp and came home. When I got there, I heard mother crying. I came into the house. Mrs. Sharon ordered me out of the house, and told me that there was law for me. I went over to John Rabb’s and got father, and he rode the horse back over the road, and I went home across the fields. When I got home, a boy was holding the horse. I never heard father say anything about making a will. I did not know about the will until after father’s death. I never had any such conversation as testified to by Sarah D. Hutch-ins. Father controlled the farm and directed when to put in grain. I moved into the homestead in 1867, at the request of father, and John, and Levi. I told Mrs. Sharon, if she could not behave herself to go home.”
Smith Rabb testified that he never had any conversation with his father about a will before or after it was made. On the day he made the will, he requested witness to get some one to write it. He was then at witness’s house, at Perrysville, and said he would make his will and go home the next day. Witness told McNeil what his father wanted, and afterward, at his request, got witnesses to attest the will. Did not know of the contents of the will until after his father’s death.
George McNeil, who wrote the will, and whose testi
“ Smith Rabb asked me to go and see the old gentleman; said he had sent for me. The old gentleman was then an
Mrs. Graham was recalled and testified that Mrs. Sharon did not order Franklin out of the house, and it was admitted that Mrs. Sharon, if present, would testify to the same thing.
This is all the evidence which tends to the proof of the allegations in the complaint, other than that relating to the unsoundness of mind of the testator. We may say that after a careful reading of the evidence with reference to the unsoundness of mind of the deceased, we think it wholly fails to establish-the fact. The question then is, does the evidence which we have set out show that the execution of the will was procured by the means stated in the complaint? We are of the opinion that it does not. Undue influence exercised by the sons, and especially by Franklin, is relied upon. We see no evidence of it. If he said, as testified to by the impeached witness, Sarah D. Hutchins, to his father, which he positively denies, that “ he ought to make a will and give his property to the boys, and not leave the girls anything,” this was far from undue influence, and was not complied with by the father, for he did bequeath to two of the girls a part of his estate. If it is supposed that he may have unduly influenced his father by what he said to him when he went after him to John 'Rabb’s at the time of the difficulty and the calling of bad names, it is enough
With reference to the difficulty at Franklin Rabb’s, it may be said that the father had full opportunity to enquire into it and learn its exact character, and it may be presumed that he did so inquire. If he ascertained the fact to be that the daughters came to the house only two weeks before their mother’s death, and got up the difficulty which ensued; if they followed it up by unkindness to their father, refusing to go to the house and join in the burial rites of their mother; and ifj though they were at the grave, they refused to associate with or speak to their father, it is not for us to say that his will, in which he disinherits them, shall not stand. We think that all the evidence in the case points to this difficulty and the subsequent deportment of the daughters as the causes for their exclusion from any participation in the estate.
As to Ancher Dunkerly, she was a granddaughter of the deceased, had been taken into his family at the death of her parents, in her infancy and helplessness, and reared and provided for by him and his wife. Under these circumstances, it might be supposed that she would have hastened to her aged and bereaved grandfather, and united in paying the
There are other questions in the record which we would have to consider before we could affirm the judgment, if the evidence was regarded as sufficient. But as we think the evidence is insufficient, we need not examine them.
The judgment is reversed with costs, and the cause remanded, with instructions to grant a new trial.
Rehearing
ON PETITION FOR A REHEARING.
A petition for a rehearing has been filed in this case in which we are asked to review our decision upon the point decided in the case ; and we are asked to grant a rehearing on two grounds not mentioned in the opinion, but which were necessarily decided in arriving at the conclusion stated in the opinion. Upon the question as to whether the evidence established any of the alleged causes for contesting the will, we see no reason to change the decision announced in the opinion.
It was claimed in the brief of counsel for the appellees, that the bill of exceptions setting out the evidence was not properly in the record, because, as was insisted, the record did not show that it was filed within the time given by the court. This position was so clearly unsupported by the
“ And to the overruling of which motion by the court, the defendants, at the time, excepted, and tender this, their bill of exceptions, and pray that the same may be signed and sealed by the court,-day of June, 1870.” Counsel now insist that the bill of exceptions “ does not show a signing in time; that it only shows that the judge was asked to sign it on the- day of June, 1870. Whether then signed or not, does not appear.” We think the learned counsel would have us indulge too much skepticism upon this point. The bill of exceptions was certainly signed before it was marked filed by the clerk on the 17th of June, 1870, which was within the time limited.
The other point made, which is not referred to in the opinion, grows out of these facts. In the assignment of errors in this court, John Rabb, Smith Rabb, Levi Rabb, and Franklin Rabb, are named as appellants, and Harriet Graham, Ferguson Graham, Margaret Sharon, John H. Sharon, Ancher Dunkerly, William Dunkerly, Rhoda Ann Rabb, Mary Benner, David Benner, Olive Davidson, Edward Davidson, Charles Rabb, Frank Rabb, Garrett Rabb, Webb Rabb, and Jane Rabb, are made appellees, it being stated that “the said appellees who were defendants below, refus
"Thos. F. Davidson, for appellees.”
On the fly-leaf of one of the printed copies of the appellees’ brief, there is this statement, in pencil, without date: “ I desire to call the attention of the court to the fact that the parties not joining in the appeal have not yet been properly made parties here. The submission has once been set aside for this reason, and I now ask that the appeal be dismissed for this cause. To dismiss is the practice of the court. Thos. F. Davidson.”
The cause was not advanced as requested, but was decided at as early a day as the other business of the court would allow, and the opinion was filed on the 15th day of September, 1873.
Counsel for appellees now urges in the petition for a rehearing, that “ the court ought not to have considered the case at all over the objection of appellees, because there has never been a valid assignment of errors. All the appellees, except Mrs. Sharon, Mrs. Graham, Mrs. Dunkerly, and their husbands, should have been appellants, and the assignment fails to show why they are made parties at all. This objection was insisted on by appellees, and has apparently not been noticed by the court.” We think it must be evident from this statement of the facts, not only that the objection now urged was never made before, but that it was expressly waived by the counsel now urging it. The parties affected by the decision were all duly notified of the appeal, and we think it is now too late, under the circumstances of this case, to urge an objection that some of them were named as appellees, when they should have been named as appellants. Under section 551, 2 G. & H. 270, it is the correct practice to unite those who do not appeal with those who appeal, in taking the appeal and in assigning the errors; those who appeal must then serve notice on those who do not, and file the proof thereof with the clerk of this court. Then, unless the parties thus noti
The petition for a rehearing is overruled.