Barricklow v. Stewart

• Decision Date: 28 October 1904
• Docket Number: 20,214
• Citation: Barricklow v. Stewart, 163 Ind. 438, 72 N.E. 128 (Ind. 1904)
• Parties: Barricklow v. Stewart, Executor, et al
• Court: Indiana Supreme Court

72 N.E. 128

163 Ind. 438

Barricklow v. Stewart, Executor, et al

No. 20,214

Supreme Court of Indiana

October 28, 1904

From Ohio Circuit Court; N. S. Givan, Judge.

Action by Ruth E. Barricklow against Stephen A. Stewart, as executor of the will of Presley Gregg, deceased, and others to set aside such will. From a judgment for defendants, plaintiff appeals.

Affirmed.

J. B Coles, Cynthia Coles and W. W. Williams, for appellant.

S. H Stewart, R. L. Davis, Roberts & Johnson, H. D. McMullen H. R. McMullen and C. W. McMullen, for appellees.

OPINION

Dowling, J.

This action was brought by the appellant, who was a niece and one of the heirs at law of one Presley Gregg, deceased, to contest the will of the said Gregg. The grounds of contest were the alleged unsoundness of the mind of the testator, that the execution of the will was procured by undue influence, and that the will was unduly executed. The answer was a general denial. Upon a trial by jury, a verdict was returned for the defendants, and judgment was rendered upon the verdict.

The ruling of the court on a motion for a new trial is assigned for error. The first reason for a new trial set out in the motion was that the verdict was not sustained by sufficient evidence.

As is usually the case in proceedings of this kind, there was some evidence from which, if standing alone, the jury might have found a different verdict. But, upon the other hand, there was much which sustained the verdict. It is not our province to compare the testimony of one witness with that of another, or to determine the weight of the evidence. This was the especial duty of the jury, and the fact that there is in the record evidence which supports the verdict precludes any further investigation of that question by this court. Erroneous views of the law of descents or of wills entertained by a testator generally constitute very slight grounds, if any, for an inference of unsoundness of mind. Even gentlemen, learned in the law of these subjects, and possessing unquestionable ability to comprehend and apply it, often differ in opinion or fall into error. It is not strange, therefore, that persons destitute of professional learning should have mistaken notions in regard to the effect of certain words in the creation of estates, and the legal consequences of inconsistent devises or bequests of property.

The objection that the attesting clause, signed by the witnesses to the will, was defective in form is unimportant. No clause of this kind is essential, and none is required by the statute. The signatures of the witnesses constitute a sufficient attestation. § 2746 Burns 1901. When the will is offered for probate, the manner of its execution and the circumstances attending it may be shown. § 2754 Burns 1901. The validity of the execution of the will depends, not on the attestation clause, but on the conformity of such execution to the requirements of the statute, and the testimony of the subscribing witnesses, if they are produced or examined. Underhill, Wills, § 200. Herbert v. Berrier (1881), 81 Ind. 1.

Counsel for appellant complain of the exclusion of evidence, but no abstract of the evidence proffered is given in their brief. We are referred to certain pages and lines of the transcript, but this is not in accordance with the rules and practice of this court. The fifth specification of rule twenty-two provides that the brief of appellant shall contain "a concise statement of so much of the record as fully presents every error and exception relied on, referring to the pages and lines of the transcript." If counsel neglect to incorporate such statement in their briefs, they can not expect the court to supply their omission by searching the transcript, and reading, perhaps, the whole of the evidence.

The refusal of the court to admit in evidence the inventory and appraisement of the property of the testator in connection with proof of alleged delinquencies of the executor with respect to such property, was entirely proper. These facts had nothing to do with the competency of the testator to execute the will or the circumstances under which it was executed.

The action of the court in refusing to give certain instructions, and in giving others, is the next error discussed by counsel. Even if instruction number one requested by appellant was correct, we think its substance was fully covered by instruction number six given by the court. Instruction number one was in these words: "If you believe from a fair preponderance of the evidence that Presley Gregg, at the time of executing the will in controversy in this action, had sufficient strength of mind and memory to know the extent and value of his property, the number and names of those who were the natural objects of his bounty, their deserts with reference to their conduct and treatment toward him, their capacity and necessity, and that he had sufficient active memory to retain all these facts in mind long enough to have his will prepared and executed, you should find a verdict for the defendants; but if you believe from such fair preponderance of evidence that Presley Gregg, at the time of executing said will, was lacking in any one of the above particulars, it is your duty to find and return a verdict in favor of the plaintiff." The only difference between the two instructions pointed out by counsel for appellant is that in number six the court used the words "sufficient mental capacity to know the extent or value of his property," while in number one, offered by appellant, the statement was "sufficient strength of mind and memory to know the extent and value of his property."

As a statement of a rule of...