Breadheft v. Cleveland

• Decision Date: 17 December 1915
• Docket Number: No. 22429.,22429.
• Citation: 110 N.E. 662,184 Ind. 130
• Parties: BREADHEFT v. CLEVELAND et al.
• Court: Indiana Supreme Court

184 Ind. 130

110 N.E. 662

BREADHEFT

v.CLEVELAND et al.

No. 22429.

Supreme Court of Indiana.

Dec. 17, 1915.

Appeal from Probate Court, Marion County; Frank B. Ross, Judge.

On petition for rehearing. Petition denied.

For former opinion, see 108 N. E. 5.

Louis B. Ewbank and Ryan & Ruckelshaus, all of Indianapolis, for appellant. Walker & Hollett and Remy & Berryhill, all of Indianapolis, for appellees.

NORRIS, C. J.

Counsel for appellee insist that the court erred in its opinion in relation to instruction numbered 24, given by the trial court. We have considered the reasons urged by counsel, but adhere to our holding shown in the original opinion.

It is most earnestly contended that instruction No. 10, given by the court, was not erroneous. Counsel say:

“If the law would not recognize the only son as the natural object of the mother's bounty, then we misunderstand the statute of descents. If Mrs. Cleveland had died intestate, her only son would have taken all of her property. There being no other heirs, the law would have recognized him as entitled to all.”

No better reason could be found for holding the instruction erroneous and calculated to mislead the jury than the above-quoted statement, since counsel must concede that the jury would naturally have understood the charge as they themselves did.

[1] The right to transmit title to property by descent or will is a creature of the lawmaking power. Donaldson v. State, 182 Ind. 615, 101 N. E. 485. The Roman Civil Law granted the right to make a will, but limited the testator's power to disinherit children. Spencer v. Terry's Estate (1903) 133 Mich. 39, 94 N. W. 372, 374. At common law it would seem that the power to make a will was granted, but the right to devise real estate thereby was denied. However, by the Ordinance of 1787, governing the territory, including that of Indiana, unlimited power was granted to transmit title to property, both real and personal, by last will and testament. Since then such power has ever existed here, except as limited by the marital relation, the age of the testator, his capacity, and certain statutory formalities in execution. Sections 3112, 3132, Burns 1914. Where no will is made, the title to the intestate's property devolves by fixed rules prescribed by legislative authority. In prescribing such rules the Legislature recognized kinship by blood, the marital relation, and the source of title of the intestate's property. These rules, however, by their express language, apply only to intestates. Section 2990, Burns 1914. If not so expressly limited, the implication would necessarily follow from the granting of the unqualified right of testamentary disposition, for the law is not guilty of the solecism of granting an absolute right to testator to select, by will, the objects of his bounty, and then limiting such right by its canons of descent. To assert that the law recognizes the absolute right of testamentary devolution, but will recognize or presume an unexplained departure from the law of descent as evidence ipso facto of deficient testamentary capacity, is self-stultifying. No one makes a will except to prevent the operation of some law of descent, and a will, strictly following such laws, would be inoperative.

[2] However, the right of testamentary disposition is withheld from persons of unsound mind, and where the testator's sanity is controverted, the unnaturalness of his conduct is proper evidence for consideration; and it is quite generally held that the provisions of the will itself may be considered as circumstances, together with other evidence, however, in determining the testator's mental condition. Where the will is admitted for such purpose the jury is instructed it may consider the will's provisions with reference to the natural objects of the testator's bounty. This requires the jury to first determine the subsidiary fact as to who would have been, under the evidence, such natural objects. By natural object is not meant the legal object recognized by the law of descent, for the power and purpose to disregard some canon of descent is necessarily implied in the making of any will. The word “natural” itself aptly points out what is meant. The jury is to determine, not what the testator would probably have done if governed by fixed canons of descent or any law of human contrivance, but what he might, under all the evidence, have reasonably been expected to have done, when subject to no influences except that of nature, with its own rules of duty and justice. If the jury find that the testator has selected objects of his bounty differing from those designated by natural laws, such fact, involving unnatural conduct, may be considered by the jury, in connection with other evidence, in determining the testator's sanity. But such fact alone will not justify a verdict of incapacity, for the power to devise necessarily includes also that of disregarding what are deemed natural rules of justice and duty. One may disinherit a child inspired by no worthier motive than pride or revenge. Addington v. Wilson (1854) 5 Ind. 137, 61 Am. Dec. 81;Sevening v. Smith, 153 Iowa, 639, 133 N. W. 1081; 40 Cyc. 1034; Re Carey (1913) 56 Colo. 77, 136 Pac. 1175, 51 L. R. A. (N. S.) 927, 947, Ann. Cas. 1915B, 958.

If the instruction under consideration be deemed merely a declaration of a law of descent, it manifestly invades the province of the jury by presenting for its consideration a collateral matter only tending to mislead the jury in its determination of a fact-and one subsidiary rather than ultimate. If it be treated as declaring a presumption of the law, it must stand or fall on the existence or nonexistence of such rule of law. To say that the law recognizes a given person as the natural object of another's bounty is the manifest equivalent of the declaration that the law presumes such object in the absence of rebutting proof. Aside from the incongruity involved in the language of the statement that the law presumes a child to be the “natural” object of its parent's bounty, is it true that any presumption obtains in regard to an object of a testator's gifts? This case was triable and tried by jury. In such trials it is the sole province of the jury to determine the ultimate facts proven, and this result is attained by the jurors applying their powers of reasoning to the evidentiary matters shown. “For reasoning there is no law other than the laws of thought.” Thayer, Preliminary Treatise on Evidence, 314, 317, 334, 337. The invasion of the jury's domain of finding facts is so often accomplished by means of so-called presumptions of law that the subject is deserving of more than passing notice. Much confusion has resulted from treating as presumptions of law matters that are merely proper inferences of fact. Donaldson v. State (1906) 167 Ind. 553, 78 N. E. 182, and authorities cited; Modern Woodmen v. Craiger (1910) 175 Ind. 30, 92 N. E. 113, 93 N. E. 209; Evansville, etc., R. Co. v. Berndt (1909) 172 Ind. 697, 705, 88 N. E. 612.

Further confusion has resulted from failure to distinguish between assumptions of procedure and administration and rules of substantive law, and treating so-called presumptions of law as constituting, per se, probative matter. Chamberlayne, Mod. Law Ev. §§ 1082 to 1158, inclusive; Thayer, supra, 337, 338.

The ordinary function of most so-called presumptions of law, as they relate...