Barnes v. Phillips

• Citation: 184 Ind. 415,111 N.E. 419
• Decision Date: 17 February 1916
• Docket Number: No. 22703.,22703.
• Parties: BARNES et al. v. PHILLIPS et al.
• Court: Supreme Court of Indiana

184 Ind. 415

111 N.E. 419

BARNES et al.

v.PHILLIPS et al.

No. 22703.

Supreme Court of Indiana.

Feb. 17, 1916.

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

Will contest after probate by Mary Phillips and others against Andrew J. Barnes, executor, and others. From a judgment for contestants, defendants appeal. Reversed, with directions to grant new trial.

Elam, Fesler & Elam and Korbly & New, all of Indianapolis, for appellants. Holtzman & Coleman and Wm. Gage Hoag, all of Indianapolis, for appellees.

MORRIS, C. J.

Suit by appellees to contest, after probate, the will and a codicil thereto, of Thomas Nock, deceased, because of alleged unsoundness of mind and undue influence. There was a trial by jury, which found both will and codicil invalid. Appellants rely, for reversal of judgment, on alleged errors in the giving and refusal to give to the jury of certain instructions.

The testator was a native of England and, with his wife, came to Indianapolis in 1870, where they subsequently lived. They had no children. Mrs. Nock died intestate in 1906, and testator died in 1911. When Mrs. Nock died her nearest of kin were nephews and nieces, living in America. Mr. Nock's nearest of kin at his death were nieces, living in England. When the Nocks came to Indianapolis they first lived with the family of Edward T. Sinker, then a prosperous business man. Mrs. Nock was a sister of Mrs. Sinker. The Nocks by close frugality acquired a considerable estate. In 1886, because of business reverses, the Sinker homestead on Vermont street had to be sold. Mr. Nock purchased it and had it conveyed to Mrs. Nock, who died the owner thereof. Its value increased greatly before Mr. Nock's death. By the will, executed in 1907, Mr. Nock devised the Sinker homestead, which he inherited from his wife, to the children of Mrs. Nock's deceased sister, who was the wife of Edward T. Sinker. This devise was in accord with the purpose of Mr. and Mrs. Nock, who, when it was purchased from the Sinkers, expressed the intention of giving it, finally, to the Sinker children. The will gives about half in value of testator's property to his wife's kindred and the remainder to his own.

[1] In its twelfth instruction the court informed the jury that “the law would recognize his said nieces as the natural objects of his bounty.” This was error. Breadheft v. Cleveland (1915) 108 N. E. 5, 110 N. E. 662.

[2] The codicil was executed in July, 1911, about four years after the execution of the will. The bulk of appellees' evidence on the question of testamentary capacity related to the time of executing the original will. Under the evidence here the jury might have found the testator of sound mind when the codicil was signed, but of unsound mind when the will was executed. In such case the...