Bell v. Bell

• Decision Date: 16 October 1940
• Docket Number: 16338.
• Citation: 29 N.E.2d 358,108 Ind.App. 436
• Parties: BELL et al. v. BELL et al.
• Court: Indiana Appellate Court

29 N.E.2d 358

108 Ind.App. 436

BELL et al. v. BELL et al.

No. 16338.

Appellate Court of Indiana, in Banc.

October 16, 1940

James L. Overson and Arthur Manning, both of Kokomo, for appellants.

Forrest Harness and Marshall, Hillis & Coffel, all of Kokomo, for appellees.

DE VOSS, Judge.

Appellants herein brought this action to resist the probate of the alleged will of Mary F. Bell, deceased, and as reasons therefore allege: (1) That the pretended will is invalid for the reason that at the time of the execution thereof, said Mary F. Bell was of unsound mind; (2) That said Mary F. Bell was unduly influenced to execute said pretended will; (3) That said pretended will of Mary F. Bell was unduly executed (4) That said pretended will is not the last will and testament of Mary F. Bell.

To this complaint the appellees herein filed their answer in general denial.

The cause was submitted to a jury for trial, and at the close of the evidence, upon request by appellees, the court instructed the jury to return a verdict for appellees. A motion for a new trial was filed by appellants, overruled by the court and the court entered judgment in conformity to said verdict. This appeal follows.

Appellants assign as error: (1) The court erred in sustaining appellees' motion for a directed verdict; (2) The court erred in overruling appellants' motion for a new trial.

The specific grounds set out in the motion for a new trial are (1) The verdict of the jury is contrary to law. (2) The verdict of the jury is contrary to the evidence.

(3) The verdict of the jury is contrary to the law and the evidence (4) The court erred in directing the jury to return a verdict for the defendants; (5) The court erred in directing the jury at the close of appellants' evidence to return a verdict for the defendants to which ruling of the court the plaintiffs separately and severally at the time excepted; (6) The court erred at the close of plaintiffs' case in directing the jury to retire to the jury room and return a verdict for the defendants, and to the giving of which directed verdict the plaintiffs separately and severally at the time excepted; (7) The court erred in giving the directed verdict to the jury which is in words and figures as follows "We, the jury, find that the written instrument offered for probate, is the last will and testament of Mary F. Bell and that the same was not executed under duress or undue influence, and that she was of sound mind and disposing memory at the time she executed the same."

John Marshall, a witness called by the proponents of the will, testified that he was a lawyer, acquainted with Mary F. Bell, and had known her about five years before she died; that on or about the 16th day of May, 1934, she came to his office and at that time he drafted a will for her; that Mary F. Bell signed said will in his presence and in the persence of the witnesses, and that Mary F. Bell, at the time said will was executed, was of sound mind.

It was stipulated by the parties that proponents' Exhibit 1 was the will in question and the same was introduced in evidence.

The appellants called some sixteen witnesses to testify relative to the issues involved herein. These witnesses testified as to their acquaintance with Mary F. Bell for periods of time both before and after the execution of the will. Many circumstances relative to the actions and conversation of Mary F. Bell were narrated by...