This proceeding was begun upon the filing by appellants in writing of verified objections to the admission to probate of the will of Wilhelmina Albertsmeyer, in accordance with the provisions of §3153 Burns 1908, §2595 R. S. 1881. These written objections charged that the instrument purporting to be the last will and testament of Wilhelmina Albertsmeyer, deceased, dated April 2, 1902, and the codicil thereto dated December 16, 1903, were not the last will and testament and codicil, respectively, of the■ decedent, for the reasons: (1) That decedent was of unsound mind and incapable of making a will at the time the pretended will purports to have been executed; (2) that decedent was of unsound mind and incapable of making a will at the time the codicil purports to have been executed; (3) that the will and codicil were each unduly executed; (4) that the pretended codicil was never executed by decedent, and that the signature thereto was not her own, nor made by her, nor by any one at her request, nor with her knowledge or consent; (5) that the will and codicil were executed under duress; (6) that the will was obtained by fraud; (7) that the codicil was procured by fraud.
Appellees answered these charges by general denial, and the cause was submitted to a jury for trial, At the con
The assignment of errors charges the court with error in overruling appellants! motion for a new trial.
Appellants applied for a new trial upon the grounds that the court erred in holding that the objectors to the will had the burden of the issues raised by the pleadings, in requiring them to make the opening statement to the jury, in.directing a verdict in favor of appellees, and that the verdict is not sustained by sufficient evidence and is contrary to law.
The following sections, quoted from our statutes upon the subject of wills, are pertinent to the question submitted: “All persons, except infants and persons of unsound mind, may devise, by last will and testament, any interest, descendible to their heirs, which they may have in any lands, tenements, and hereditaments, or in any personal property, to any person or corporation capable of holding the same.” §3112 Burns 1908, §2556 R. S. 1881.
“No will except a nuncupative will shall affect any estate, unless it be in writing, signed by the testator, or by some one in his presence with his consent, and attested and subscribed in his presence by two or more competent witnesses; and if
“Before a written will shall be admitted to probate, or letters testamentary or of administration, with the will annexed, shall be granted thereon, such will shall be proven by one or more of the subscribing witnesses, or, if they be dead, out of thé State, or have become incompetent from any cause since attesting such will, then by proof of the handwriting of the testator or of the subscribing witnesses thereto.” §3141 Burns 1908, §2584 R. S. 1881.
“If it shall appear, from the proof taken, that the will was duly executed, and that the testator at the time of executing the same was competent to devise his property and not under coercion, such testimony shall be written down, subscribed by the witness examined, and attested by said clerk with his signature and seal of office; and the will, with such testimony and attestation, shall be recorded by such clerk in a book kept for that purpose, and certified by him to be a complete record.” §3145 Burns 1908, §2587 R. S. 1881.
“Every will so proven shall have a certificate indorsed thereon or attached thereto, substantially stating that it has been admitted to probate; that a complete record of it and the testimony of the witnesses has been duly recorded; the names of such witnesses, and the title and page of the book in which it is recorded; which certificate shall be attested by the signature of the clerk of such court' and his official seal.” §3146 Burns 1908, §2588 R. S. 1881.
“Every will so authenticated, or a complete copy of the record thereof, certified by the clerk in whose custody it may be, and attested by his signature and official seal, may be read in evidence without further proof.” §3147 Burns 1908, §2589 R. S. 1881.
The statutes authorizing proceedings to resist the probate or to contest the validity of a will read as follows: “If, prior to the admission of any will to probate before the clerk
“Any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the circuit court of the county where the testator died, or where any part of his estate is, his allegation, in writing, verified by his affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress or was obtained by fraud, or any other valid objection to its validity or the probate thereof; and the executor and all other persons beneficially interested therein shall be made defendants thereto.” §3154 Burns 1908, §2596 R. S. 1881.
A more troublesome problem is presented by the question as to who has the burden of proving testamentary capacity in a proceeding of this character. The statute authorizing the making of wills, §3112, supra, provides that “all persons, except infants and persons of unsound mind, may devise, by last will, ’ ’ etc.
In the case of Goodwin v. Smith, supra, this court said: “Whoever asserts a right dependent for its existence upon a negative, must establish the truth of the negative by a preponderance of the evidence. This must be the rule, or it must follow that rights, of which a negative forms an essential element, may be enforced without proof. This conclusion would be both illogical and unjust, and we are, therefore, authorized to infer the truth of its converse. ’ ’ The following cases are to the same effect: Boulden v. McIntire (1889), 139 Ind. 574, 12 Am. St. 453; City of New Albany v. Endres (1896), 143 Ind. 192, 203; Archibald v. Long (1896), 144 Ind. 451, 455.
It is further held, in the following cases, that the burden of establishing a strict compliance with every essential to the validity of a will has always been cast upon the proponents. Harris v. Vanderveer’s Executor (1870), 21 N. J. Eq. 561; Barker v. Comins (1872), 110 Mass. 477, 483; Welter v. Habersham (1878), 60 Ga. 194; Kennedy v. Upshaw (1886), 66 Tex. 442, 448, 1 S. W. 308.
In the case of Morell v. Morell, (1901), 157 Ind. 179, probate was resisted on the ground of nonexecution of the will, and this court correctly held that the burden of proof rested upon the proponent. In the course of the opinion, but not as a necessary part of the decision, it was argumentatively and inadvertently said: “If the probate was resisted on the ground that the testator was of unsound mind at the time he executed the will, or that its execution was procured by undue influence, or fraud, each of which implies actual
It is well known that many of the clearest and brightest intellects have sincerely believed in spiritualism, mind-reading, clairvoyance, witchcraft, and other vagaries, and it cannot be said as a matter of law that such belief is the certain offspring or evidence of an unsound mind. A belief that spirits communicate with human beings through mediums is a conviction produced by some sort of evidence, and not a mere conception of a morbid fancy rising spontaneously in the mind, and so does not, ipso facto, constitute an insane delusion. This must be declared to be the legal status, in the abstract, of minds entertaining such beliefs, notwithstanding our own opinion that ’ such pretended spiritual manifestations were correctly characterized by Vice-Chancellor Gifford, in Lyon v. Home (1868), L. R. 6 Eq. *655, *682, as “mischievous nonsense, well calculated, on the one hand to delude the vain, the weak, the foolish, and the superstitious ; and on the other to assist the projects of the needy and of the adventurer.” It is entirely legitimate and proper for the wife to seek the advice of her living husband, and after death to pay some regard to his known wishes in the preparation of her will; but, when such pretended counsel comes through the dubious channel of a “medium,” as an oracle from one possessing knowledge of the great hereafter, under the solemn surroundings of the seance, its influence upon a credulous mind can hardly be measured. The indul
No evidence of the formal execution of the will or codicil was offered, nor was any affirmative testimony of the sanity of the testatrix given. There was evidence tending to prove
The judgment is reversed, with directions to sustain appellants’ motion for a new trial, and for further proceedings not inconsistent with this opinion.