Ailes v. Ailes, 15638.

• Decision Date: 22 November 1937
• Docket Number: No. 15638.,15638.
• Parties: AILES et al. v. AILES et al.
• Court: Indiana Appellate Court

104 Ind.App. 302
11 N.E.2d 73

AILES et al.
v.
AILES et al.

No. 15638.

Appellate Court of Indiana, in Banc.

November 22, 1937.

Appeal from Montgomery Circuit Court; Edgar A. Rice, Judge.

Will contest by Junia M. Ailes, individually and as administratrix of the estate of Samuel W. Ailes, deceased, against Roy Ailes and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

[11 N.E.2d 74]

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.

[1][2] 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...