Arnold v. Parry

Decision Date13 June 1977
Docket NumberNo. 2--975A242,2--975A242
Citation173 Ind.App. 300,363 N.E.2d 1055
PartiesPaul R. ARNOLD, II, Appellant (Plaintiff below), v. John K. PARRY, Executor of the Estate of William P. Lamb, Deceased, and the Salvation Army, Inc., Appellees (Defendants below).
CourtIndiana Appellate Court
Larry R. Champion, Indianapolis, for appellant

Shubrick T. Kothe, Kothe, Shotwell, Claycombe Hendrickson & Kortepeter, H. Kirkwood Yockey, Yockey & Yockey, Indianapolis, for appellees.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Paul R. Arnold II, Plaintiff-Appellant (Arnold), appeals from an unfavorable judgment in his attempt to contest the validity of a Will dated July 6, 1970, claiming it was unduly executed, one of his tendered instructions should not have been refused, the Will was procured by undue influence, and the Testator was of unsound mind.

We affirm.

FACTS

The facts most favorable to the judgment are:

From 1968 until his death in 1974, the Testator, William P. Lamb, resided in Hoosier Village Nursing Home, Marion County, Indiana.

He was visited there frequently by his friend and attorney, Grier Shotwell.

On July 6, 1970, Mr. Lamb executed a Will which was witnessed by Mr. Shotwell and Mrs. Hilda Johnson, the administrator of Hoosier Village Nursing Home. This Will left the bulk of Mr. Lamb's estate to The Salvation Army, Inc. (one of the defendant-appellees, the other one being John K. Parry, Executor Mr. Lamb's estate).

Mrs. Johnson, the only living witness to the Will, stated that Mr. Lamb signed the document in her presence and that she and Mr. Shotwell signed in the presence of each other and Mr. Lamb, and that either Mr. Lamb or Mr. Shotwell (in Mr. Lamb's presence) referred to the document as Mr. Lamb's Will. She further testified that she did not read the attestation clause above her signature.

Although Mr. Lamb suffered from arteriosclerotic heart disease and various other minor infirmities attributable to old age, he was remarkably alert for his age and continued to be keenly interested in his business affairs until his death in 1974 at the age of 101.

On February 13, 1974, the Will dated July 6, 1970, was admitted to Probate. Arnold, a great-nephew of Mr. Lamb's deceased wife and a beneficiary under a prior Will, filed an action May 21, 1974, to test the validity of that Will.

The Probate Court sustained a Motion for Judgment on the Evidence by Defendants (Parry, as Executor, and The Salvation Army, Inc.) on the issue of undue influence, and the jury returned a verdict for them on the other issues. The verdict was reduced to the following judgment:

'The jury having returned its verdict for the defendants and sustaining the probate of deceased Will, the Court now enters judgment for the defendants, costs versus Plaintiff.'

This is an appeal from that judgment.

ISSUES

Arnold presents four issues for review: 1

ISSUE ONE--Was Will dated July 6, 1970, properly published by the Testator (Lamb) as required by IC 29--1--5--3?

ISSUE TWO--Whether the court erred in refusing to give Arnold's Preliminary Instruction No. 1.

ISSUE THREE--Whether the court erred in granting Defendant's Motion for Judgment On the Evidence on the issue of the undue influence exerted on the Testator (Lamb) by his attorney (Shotwell).

ISSUE FOUR--Whether the decision was contrary to the evidence on the issue of whether Lamb was of unsound mind at the time the Will was executed.

PARTIES' CONTENTIONS--As to Issue One, Arnold says the Will was improperly executed, because the only surviving attesting witness, Mrs. Hilda Johnson, could not positively state that the Testator published his Will by signifying to her that she was witnessing his signature on his Will as required by IC 29--1--5--3:

29--1--5--3 Signatures

Sec. 3. (a) The execution of a will, other than a nuncupative will, must be by the signature of the testator and of a (sic) least two (2) witnesses as follows:

(1) The testator shall signify to the attesting witnesses that the instrument is his will and either

(i) Himself sign, or

(ii) Acknowledge his signature already made, or

(iii) At his direction and in his presence have someone else sign his name for him, and

(iv) In any of the above cases the act must be done in the presence of two (2) or more attesting witnesses. (emphasis supplied) (the Statute herein)

Defendants (Parry, Executor, and The Salvation Army, Inc.), on the other hand, point out that it can be inferred from Mrs. Johnson's testimony that either Mr. Lamb or his attorney in the presence of Mr. Lamb stated to her that the document was Mr. Lamb's Will and that this is sufficient publication. 2

As to ISSUE TWO, Arnold asserts that the court's failure to give his Preliminary Instruction No. 1 caused the jury to be improperly informed on the burden of proof and caused them to give undue weight to the document being presented for probate.

Defendants take the position that the jury was properly instructed on burden of proof and that Arnold's Preliminary Instruction No. 1 would have been unduly confusing to the jury.

As to ISSUE THREE, Arnold argues that a judgment on the evidence on the issue of undue influence was improper, because there was sufficient evidence of undue influence to let the issue go to the jury.

Defendants' response is that there was no evidence of undue influence and that judgment on the evidence was appropriate.

As to ISSUE FOUR, Arnold alleges that the decision was contrary to the evidence because he proved that Lamb was of unsound mind at the time the Will was executed.

Defendants, however, point out that Arnold had the burden of proof on the issue of the Testator's testamentary capacity. They therefore contend that because the evidence was conflicting on the issue of Testator's soundness of mind, and this court cannot weigh the evidence, a finding for them on this issue is necessary.

DECISION
ISSUE ONE

CONCLUSION--It is our opinion that there is sufficient evidence of publication of the Will to comply with the Statute.

Publication is the act of making it known in the presence of witnesses that the instrument to be executed is the Last Will and Testament of the Testator. Page on the Law of Wills, supra, § 19.143. The purpose of publication is not to inform the witnesses that the document is a Will, but rather to make sure that the witnesses are aware the Testator knows he is about to execute a Will. The likelihood of fraud is lessened if the witnesses know the Testator understands the testamentary character of the instrument he is about to execute. 94 C.J.S. Wills § 187 (1956).

The pertinent part of the Statute is Sec. 3(a)(1) which provides unambiguously that 'The testator shall signify to the attesting witnesses that the instrument is his will and either . . .' So a Will is published if the Testator signifies to the attesting witnesses it is his Will.

How may this be done? Must the 'sign' come only from the Testator as an utterance from him, as Arnold maintains?

With no Indiana law available to enlighten us, we seek guidance (1) by way of analogy to the requirement of a request by the Testator to the witnesses to sign and (2) the treatment of the publication question in foreign jurisdictions.

The publication requirement seems to be closely analogous to the requirement in some jurisdictions that a Testator request the witnesses to sign.

An Indiana court in Bundy v. McKnight (1874), 48 Ind. 502, points out that states having a statutory requirement that the Testator request the witnesses to sign do not require that the request come directly from the Testator:

It will be observed, that the . . . section does not require that the witnesses shall attest and subscribe the will at the request of the testator. In that respect it differs from the New York statute, for that in express terms requires that the witnesses must attest and subscribe the will at the request of the testator, and this should be borne in mind when we come to consider some New York cases placing a construction upon such statute.

In Gilbert v. Knox, 52 N.Y. 125, it is said: '. . . But a substantial compliance is sufficient, and although the statute declares that the witnesses must sign at the request of the testator, and that he shall subscribe the will, or acknowledge the subscription in their presence, the words of request or acknowledgment may proceed from another, and will be regarded as those of the testator where the circumstances show that he adopted them, and that the party using them in his presence was acting for him with his assent.' 48 Ind. at 506--07. (emphasis supplied)

The request for the witnesses to sign may come from the Testator's attorney or the scrivener of the Will, and is justified as coming from the Testator on an agency theory. The soundness of this doctrine is articulated in re Adams (1922), 120 Wash. 189, 206 P. 947:

(T)he request that witnesses should attest and subscribe a will may be inferred from the acts and conduct of the testator as well as from his express words; that the law regards substance rather than literal form in such matters; and that it was not essential that the testator should expressly request the subscribing witness to attest his will; saying, further, that the active part of procuring the witnesses and requesting them to sign the will as such is not infrequently borne by the testator's professional counsel, and that, if such counsel acts truly for the testator in his conscious presence and with his apparent consent, the legal effect is the same as though the testator himself and made the request. The soundness of this doctrine is not to be doubted. The ordinary testator does not usually know the statutory requirements necessary to a valid will. It is for this reason that he employs professional counsel. His desire is to make a valid will, and he expects and has the right to presume that his counsel will take all the necessary formal steps the legal execution of the will requires. His cou...

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