Barr v. Sumner

• Decision Date: 11 February 1915
• Docket Number: 22,416
• Citation: 107 N.E. 675,183 Ind. 402
• Parties: Barr et al. v. Sumner et al
• Court: Indiana Supreme Court

107 N.E. 675

183 Ind. 402

Barr et al. v. Sumner et al

No. 22,416

Supreme Court of Indiana

February 11, 1915

Rehearing Denied June 18, 1915, Reported at: 183 Ind. 402 at 423.

From Benton Circuit Court; James T. Saunderson, Special Judge.

Action by Edward C. Sumner and others against James R. Barr and others. From a judgment for plaintiffs, the defendants appeal.

Reversed.

Fraser & Isham, Stuart, Hammand & Simms and Ryan, Ruckelshaus & Ryan, for appellants.

Kumler & Gaylord and Monks, Robbins & Goodrich, for appellees.

OPINION

Morris, J.

Action by appellees, against appellants, to contest the will, and codicil thereto, of Mrs. Jennie E. Caldwell, and to revoke the probate thereof. Trial by jury, verdict and judgment for appellees. Error is assigned on the overruling of appellants' motion for judgment on the answers to interrogatories submitted, and on their motion for a new trial.

Testatrix by her will and codicil, purported to devise real estate of the value of about $ 900,000, and to bequeath personalty worth about $ 80,000. She left surviving no husband, ancestor, or descendant. Appellees Edward C., Aaron T., and Reynolds Sumner are children of a deceased brother of testatrix's mother; appellees Abigail H. Hart, Minerva H. Ditton, Elizabeth H. Bond, and Martha J. Jewell are children of Jane Hawkins, deceased, who was a sister of testatrix's mother; appellee James Hawkins is a son of a deceased child of said Jane Hawkins. Appellant Grace D. Follansbee is an aunt of Mrs. Caldwell, while appellants Charles, Nellie W. and Merrill Fowler, Ida Pendexter and Grace Wiseman are children of a deceased brother of her father. Appellants Compton, Dinwiddie and James R. Barr are named in the will as executors and trustees. Appellant Kathryn M. Sumner became a member of the household of Mrs. Caldwell's parents when she and testatrix were each thirteen years of age, and, after the death of the parents, lived with testatrix. The other appellants are named in the will as beneficiaries. The fee simple of the greater part of the real estate was devised to the trustees for charitable purposes.

The will in question was executed October 1, 1909, and the codicil was made October 23, 1911. Mrs. Caldwell died January 20, 1912. In January or February, 1909, she had executed a will in most respects similar to the one in question. The complaint alleges that when the will and codicil were executed, Mrs. Caldwell was of unsound mind; that the execution of the will and codicil was each procured by undue influence; that each was unduly executed.

Appellees submitted twenty-three interrogatories for answer by the jury while appellants submitted one hundred and twenty-two. In answer to appellees' interrogatories, the jury made a finding in relation to a certain supposed influence exercised by the supposed spirit of testatrix's deceased father or husband, on her, while executing the will, she being found a believer in spiritualism. It also made a finding in relation to a supposed delusion founded on a belief by Mrs. Caldwell that she had been ordered out of the house of her aunt, Jane Hawkins. It is claimed by appellants that by the answers to interrogatories the jury found the testatrix was possessed of full testamentary capacity; that the will was signed and attested in conformity with statutory requirements; that the purported findings on the issues of undue influence and insane delusions must be rejected for certain reasons stated, which reasons we deem it unnecessary to set forth; that consequently the court erred in overruling appellants' motion for judgment on the answers to interrogatories, notwithstanding the general verdict. The position assumed is wholly untenable.

The general verdict finds for the plaintiffs (appellees) generally, which, because a whole of a thing includes each part thereof, must be held a finding for plaintiffs on each issue involved. The allegation of undue execution was sufficient to tender any issue of duress, undue execution or fraud that might be shown by the evidence. Kenworthy v. Williams (1854), 5 Ind. 375; McDonald v. McDonald (1895), 142 Ind. 55, 63, 41 N.E. 336; Thompson v. Miller (1914), 182 Ind. 545, 107 N.E. 74. While in actions governed by the civil code, a plaintiff must state each cause of action in a separate paragraph, such particularity is not required in the special proceeding to contest a will, and under the general allegation of undue execution the plaintiff may prove as many separate causes of action based on duress, undue influence or fraud, as he has evidence to support. Kenworthy v. Williams, supra. Undoubtedly a plaintiff may plead in separate paragraphs as many distinct causes of action, grounded on duress, undue influence and fraud, as he may desire, but he is not compelled to do so; here plaintiffs pleaded generally, and only two possible methods are open to discover the particular issues that were tried--resort to the special findings, or the evidence. The findings do not show an absence of fraud, duress and undue influence, and in reviewing a trial court's ruling on a defendant's motion for judgment on answers to interrogatories, resort to the evidence is precluded. This question has been so decided, by the courts of appeal of this State, hundreds of times. A partial list of the cases so holding may be found in the five columns devoted to such purpose in 9 Ind. Dig. Ann. 822, 823, 824. The decisions of the question are uniform and consistent and cover a period of more than half a century during which the statute in relation to the submission of interrogatories has been twice reenacted. § 546 R. S. 1881, Acts 1881 (s. s.) p. 240; § 572 Burns 1914, Acts 1897 p. 128. The reenactments, under the circumstances, adopted the previous constructions of the act by this court. State v. Ensley (1912), 177 Ind. 483, 97 N.E. 113, Ann. Cas. 1914 D 1306. Were we of the opinion that all those consistent decisions are erroneous we would be without rightful authority to overrule them, because this court is vested with no legislative power. Appellants' motion for judgment was correctly overruled, for if it be conceded that full testamentary capacity is found, and that the finding relating to undue influence must be disregarded, yet it must be presumed on the face of the record that the jury found for plaintiffs on some issue of duress, fraud or undue influence.

There was evidence given to show that Mrs. Caldwell was a believer in spiritualism, and that she was of unsound mind. Appellants contend that the court erred in refusing to give their requested instruction No. 48, reading as follows: "The jury are instructed that under the evidence in this case, there is no question upon the subject of spiritualism that has any bearing upon the question before the jury." There was no error. It is true that a belief in spiritualism, of itself, in nowise impairs the right of testamentary disposition more than does a credence in any other religious doctrine, or system of philosophy. Our Constitution guarantees religious liberty and the statutory right to make a will is not limited to those who discard a belief in any particular cult, dogma or principle. Steinkuehler v. Wempner (1907), 169 Ind. 154, 81 N.E. 482, 15 L. R. A. (N. S.) 674, and monographic note thereto.

But a belief in any religious doctrine, philosophical system or science may be vitally material, in connection with other facts and circumstances, in determining the question of one's testamentary capacity. The evidence here shows that by the will signed in January or February, 1909, testatrix made a bequest to Clara Becker, a spiritualist, and that the will in question omits any gift to such person. This and other circumstances disclosed by the evidence made the belief in spiritualism a proper matter for consideration.

Appellants' counsel earnestly contend that the verdict is not sustained by sufficient evidence. This claim is asserted on each of two theories, viz., (1) that the evidence, considered as a whole, regardless of answers to interrogatories, is not sufficient; (2) but should the court hold otherwise, it is claimed that the general verdict is entirely unsupported on all issues except on those where the jury found specially in appellants' favor, and, in determining the question of the sufficiency of the evidence, the court must consider the answers to interrogatories, where the same are supported by any evidence.

Appellees meet the first contention with the assertion that much competent evidence was given in behalf of appellees which shows that testatrix was of unsound mind, and that each of at least seven nonexpert witnesses, after stating that he had observed the testatrix, her actions and appearance, and after detailing certain other facts, expressed his opinion that at that time she was of unsound mind. Appellants contend that no fact detailed by any of such witnesses shows mental unsoundness; that the sole test of the opinion must be the detailed facts on which it was based, and that when so tested each opinion must be disregarded. We can not accept this view of the law. Opinion evidence of nonexperts rests on a rule of necessity. If the witness could detail all the facts accurately, the opinion would be superfluous, as the jury is as well qualified as the witness to draw the proper conclusion. But there may be many things in the appearance and acts of a person whose mental condition is under investigation that can not be fully and accurately described in words, but which nevertheless form a reliable basis for a conclusion, and because of such fact a lay witness who has observed the appearance and deportment of the subject of inquiry may give his opinion as to mental condition. Stephenson v. State (1887), 110 Ind. 358, 11...