Ailes v. Ailes

• Decision Date: 22 November 1937
• Docket Number: 15638.
• Citation: 11 N.E.2d 73,104 Ind.App. 302
• Parties: AILES et al. v. AILES et al.
• Court: Indiana Appellate Court

11 N.E.2d 73

104 Ind.App. 302

AILES et al. v. AILES et al.

No. 15638.

Appellate Court of Indiana, in Banc.

November 22, 1937

W J. Sprow, of Crawfordsville, and Robert W. Marks, of Ladoga for appellants.

Harding & Harding, of Crawfordsville, for appellees.

LAYMON Chief Judge.

This is an action by appellee Junia M. Ailes, widow of the decedent Samuel W. Ailes, to contest the will of said Samuel W. Ailes and set aside the probate thereof upon the following grounds (1) That the will was unduly executed; (2) that the decedent at the time of the purported execution of the will was of unsound mind; (3) that the will was executed under duress; (4) that the purported execution of the will was obtained by fraud. The complaint was in one paragraph, to which was addressed an answer in general denial. Trial was by jury, and the court, by its instructions, eliminated all of the issues except that of unsoundness of mind of the testator at the time of the execution of the will. The jury found for the appellee as follows: "We, the jury, find for the plaintiff; that the will in question is invalid and void and that the probate thereof should be set aside and held for naught." Thereupon, the court rendered judgment in harmony with the verdict. In due time appellants filed their motion for a new trial which was overruled, and this appeal followed. The only error assigned is the ruling of the court on the motion for a new trial. The grounds in the motion for a new trial which are duly presented by appellant are that the verdict of the jury is not sustained by sufficient evidence; that the verdict of the jury is contrary to law; and that the court erred in giving instruction No. 14 upon its own motion. Appellants challenge the sufficiency of the evidence to sustain the finding of the jury, and assert that there is no evidence that the testator was of unsound mind on the date of the execution of his will.

While it is true that in cases such as the one at bar, where the mental capacity of the testator is involved, the principal question under investigation upon this issue is, Was he of unsound mind at the time the will in controversy was executed? however, as bearing upon the mental condition of his mind, at this given time, facts and circumstances which tend to show his mental condition both prior and subsequent to the execution of the will in contest may be received in evidence. This rule is recognized by the decisions of our Supreme Court. Dyer v. Dyer (1882) 87 Ind. 13; Staser v. Hogan (1889) 120 Ind. 207, 21 N.E. 911, 22 N.E. 990; Bower et al. v. Bower et al. (1895) 142 Ind. 194, 41 N.E. 523. The period of time that may be covered by the examination relative to the mental capacity of the person in question, both prior and subsequent to the execution of the will, under all the circumstances in each particular case, must necessarily be left to a great extent to the sound discretion of the trial court, the abuse of which may be subject to review upon appeal.

The contention of appellants is without merit. The record discloses that the witnesses Junia M. Ailes and Walter W. Ashby, after having recited a number of facts upon which to base their opinion, stated that the testator was not of sound mind when he made his will. Thomas Z. Ball, in answer to a hypothetical question, testified, as an expert, that said testator was of unsound mind at the time of the making of the will referred to. Other witnesses related facts occurring near the time of the execution of the will upon which they based their opinion that the testator was of unsound mind. All of this evidence was properly submitted to the jury with instructions that they consider such evidence to determine whether or not the testator, at the time of the execution of the will, was a person of unsound mind, and, since there is some evidence to sustain the verdict, we cannot disturb it.

Appellants next assert that opinions of experts based upon hypothetical questions which assume facts to be true which are not proven are of no probative value and will not sustain a verdict setting aside a will. It is true that if the facts assumed in the hypothetical question are not substantially proved by the other evidence, the expert testimony thus elicited will be of little or no value. If facts are assumed in a hypothetical question which are clearly so exaggerated as to impair the opinion, or...