165 Ind. 353 | Ind. | 1905
This action was brought by appellant against appellees to contest the will of Clark Wait, deceased, and to revoke the probate of said will. A judgment in favor of appellant upon a former trial was reversed by this court for the reason that want of evidence rendered the verdict contrary to law. Wait v. Westfall (1904), 161 Ind. 648. The cause was remanded, and upon another trial the court directed the jury to return a verdict in favor of appellees, and upon that verdict the judgment was’ rendered from which this appeal is taken.
The assignment of errors calls in question the action of the court in taxing the costs of the former trial to appellant, and in refusing to tax to appellees the cost of lay witnesses in excess of three in number, who were subpoenaed by them, and testified only to facts upon which to express an opinion as to the mental condition of the testator, and in overruling appellant’s motion for a new trial.
Appellant’s motion for a new trial embraced seventy-seven specifications or reasons, the first sixty-eight of which related to the admission and rejection of evidence, the next
Additional evidence which, is merely cumulative will not take the case out of the rule and constitute a material change, where evidence of the same class and character upon the former appeal has been adjudged insufficient to prove the fact in controversy. Lesser v. Boekhoff (1889), 38 Mo. App. 445, 449; Hickman v. Link (1893), 116 Mo. 123, 125, 22 S. W. 472; Higgins v. Crouse (1893), 55 N. Y. St. Rep. 94, 95, 24 N. Y. Supp. 1080.
We have examined the record of the former appeal, and find the evidence in this record and in that substantially the same. At the last trial some witnesses upon the former trial were not called, and a few new witnesses were examined. The testimony of the additional witnesses was merely cumulative, and of the same general character and class as that given by other witnesses, and which this court in the former opinion held failed to show that the weird fancies entertained by the testator in any manner affected his will or furnished any ground for denying him the right to dispose of his property as he was pleased to do. We, therefore, hold that the question of testamentary capacity is res adjudicata, by virtue of the former decision upon substantially the same facts.
The motion for a new trial was correctly overruled, and, no error appearing upon the record, the judgment is affirmed.