Allman v. Malsbury

• Decision Date: 25 February 1946
• Docket Number: 28143.
• Parties: ALLMAN et al. v. MALSBURY et al.
• Court: Indiana Supreme Court

65 N.E.2d 106

224 Ind. 177

ALLMAN et al. v. MALSBURY et al.

No. 28143.

Supreme Court of Indiana

February 25, 1946

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Miami Circuit Court, Hurd J. Hurst Special judge.

David E. Rhodes, Russell R. Rhodes, and H. K. Cuthbertson, all of Peru, for appellants.

Russel J. Wildman and A. H. Cole, both of Peru, for appellees.

O'MALLEY Judge.

The appellants commenced this action to contest and set aside the probate of the will of John J. Miller. The grounds asserted were unsoundness of mind, fraud, undue influence and that the will was unduly executed. The cause was placed at issue and submitted to a jury which by its verdict found against the appellants and that the will was valid. A motion for a new trial was filed and overruled and this appeal questions the action of the court in its ruling on said motion. The evidence is not in the record; the appeal is based on § 2-3223, Burns' 1933; and the certificate of the court states that all instructions given and refused were applicable to the evidence excepting those numbered 16, 22 and 25 tendered by the appellants and refused.

The motion questioned the giving of instructions numbered 7, 8, 9, 11, 12, 13, 14, 15, 16, 20, 22, 24, 27, 29, 32, 33 and 34 given at the request of the appellees, defendants below, and also the refusal to give instructions numbered 10, 12, 14, 22, 25, 26, 29 and 30 requested by the appellants, plaintiffs below. Assigned error on instruction number 32 of the former group is not briefed under Clause (f) of Rule 2-17 of this court and any claimed error because of the giving of this instruction is waived.

Of the latter group instructions numbered 22 and 25 are by the certificate of the court held to be not applicable to the evidence and need no further consideration.

The appellees question the sufficiency of the record to present any question under § 2-3223, Burns' 1933, but we believe under the holding in Jones v. Beasley, 1921, 191 Ind. 209, 131 N.E. 225, there is a compliance with the terms of the statute.

The rule of law applicable to instructions in an appeal under the above statute is stated in Jones v. Beasley, supra, 191 Ind. at pages 212, 213, 131 N.E. at page 226, in these words:

'Where the evidence is not in the record, the giving of an instruction will not constitute reversible error if it would not have been erroneous under a supposable state of the evidence admissible under the issues, to which it could apply. * * * The burden is upon the appellant to present for review a record which affirmatively shows that the error complained of was committed. * * *

'But if it is shown that an erroneous instruction of a character which might probably be prejudicial to appellant was given and was duly excepted to, the court will not indulge in conjecture as to whether the state of the evidence made the error harmless, but it will be presumed to have prejudiced appellant's substantial rights unless the contrary is shown * * *.'

See Bonham v. Mendenhall, 1934, 98 Ind.App. 189, 188 N.E. 695; Thomas v. City of Huntington, 1923, 80 Ind.App. 476, 141 N.E. 358.

The above opinions indicate that it is necessary to except to an instruction in order to raise a question. On September 2, 1940, this court by Rule 1-7 determined that a general exception to an instruction would no longer raise a question and it is now necessary to show a specific objection to each instruction which is questioned in the motion for a new trial or on appeal. Furthermore, the question must be based upon that specific objection and any and all defects not so pointed out to the trial court are waived. This rule is not different from the rule so long in use in the admission of items of evidence. Unless a specific objection to a question is made, the admission of the answer is not error, and in the motion for a new trial or on appeal, the party is confined to the specific objection so made, and all other possible objections are waived.

Another rule of this court (Rule 2-17) provides that any claimed error which is not briefed under propositions, points and authorities shall be considered waived, and it seems likewise clear that if a proposition or point is not based on the specific objection it cannot be considered.

The first instruction complained of is number seven. This instruction told the jury that the mere use of intoxicants would not deprive the testator of the right to make a will; that becoming intoxicated and having a sedative administered raised no presumption of unsoundness of mind at the time of the execution of the will. It further told the jury that if from all the evidence they found the testator to be of sound mind at the time of the execution of the will, they should find for the defendants on that issue.

The objection made in the trial court was that it invaded the province of the jury by stating as a matter of law that the hypodermic injections were sedatives; that it was contrary to the uncontradicted facts; that the amount of drinking did as a matter of law constitute excessive drinking; and that it invaded the province of the jury by instructing as a matter of law that the facts in evidence did not render the testator incapable of making a will. It was further asserted that the instruction was peremptory and directed a verdict for the defendants regardless of the issues of fraud and undue influence. All parts of the objection excepting the first and last depend upon the quantum of evidence received at the trial. Since the evidence is not before us we cannot determine anything in regard thereto. The first part of the objection was not based on a correct interpretation of the intent of the instruction and the last part erroneously assumed that the instruction was peremptory regardless of the issues of fraud and undue influence. The instruction directed a finding for the defendants on the issue of unsoundness of mind if the jury found from all the evidence that the testator was of sound mind at the time in question. That did not make the instruction peremptory in character nor did it ignore the other issues.

Instruction number eight merely stated that some evidence was given concerning the divorce; that the judgment of divorce could not be impeached in this proceeding; and that the jury was not called on to pass upon the merits of the divorce proceeding.

The objection to this instruction referred to the quantum of evidence concerning the divorce and matters connected therewith. It assumed that there was an issue in this case in regard thereto, and that the instruction took away from the jury the right to consider the conduct of the testator and Ethel Malsbury prior to and leading up to the divorce proceeding. In the absence of the evidence we cannot determine anything based on such objection. Further, the certificate of the court makes the instruction applicable to the evidence and the claim that the instruction assumed that the divorce was 'in issue' is not well founded.

Instruction number nine told the jury that although some evidence concerning a trust fund received by the testator had been introduced, there was no issue in the cause as to whether or not such fund had been so received. It further stated that the will did not attempt to dispose of such fund and that the will could not defeat the provisions of such trust, if there were one. The objection to this instruction assumed that such instruction told the jury that evidence concerning the trust fund could not be considered in determining or passing upon the issues of unsoundness of mind, undue influence or fraud, and further that the instruction was peremptory in character. An examination of the instruction and of the objection readily discloses that the one is not even distantly related to the other. The objection shows that the instruction was not carefully read or studied prior to the entry of the objection. This instruction concerned a collateral matter and did not even intimate that the evidence could not be considered on all issues of unsoundness of mind, fraud and undue influence.

Instruction number eleven told the jury that the questions of whether the testator furnished the money for a farm or whether he or Ethel Malsbury owned said farm were not for their consideration or determination.

The objection stated that this instruction took from the jury the right to consider such facts on the questions of unsoundness of mind, undue influence and fraud. The instruction was not subject to the criticism made.

Instruction number twelve limited to the issue of unsoundness of mind the effect of evidence obtained by questions propounded to Ethel Malsbury. The objection was that such instruction limited the right of the jury to consider such evidence on the single issue of unsoundness of mind.

In the absence of the evidence we cannot determine the correctness of the action of the court in so limiting such evidence. We have no difficulty in supposing a state of the evidence that would render this instruction a proper one.

The thirteenth instruction reads as follows:

'Every person is presumed to be of sound mind until the contrary is shown, and the burden rests upon those who assert his unsoundness of mind to prove such assertion by a fair preponderance of the evidence; and in this case the presumption is that John J. Miller was of sound mind at the time of the execution of said will, unless and until the contrary has been shown by a preponderance of the evidence.'

The objection which was interposed to the above instruction is as follows:

'We object to Instruction Number Thirteen (13) for the reason that it takes from the jury the right to consider a fact, if such fact is found by the jury that the Testaor...