Blough v. Parry

• Decision Date: 03 April 1896
• Docket Number: 16,874
• Citation: 43 N.E. 560,144 Ind. 463
• Parties: Blough et al. v. Parry et al
• Court: Indiana Supreme Court

43 N.E. 560

144 Ind. 463

Blough et al. v. Parry et al

No. 16,874

Supreme Court of Indiana

April 3, 1896

Original Opinion of March 19, 1895, Reported at: 144 Ind 463.

McCabe J. Howard, J., dissents.

OPINION

McCabe, J.

The earnestness, ingenuity and learning with which the petition for rehearing in this case is pressed, and the growing importance of the subject, have induced us most carefully to review the voluminous record of over 1,000 printed pages, and also to consider and investigate very closely the legal principles by which courts should be guided in determining questions of testamentary capacity as affected by mental unsoundness.

In opposing our holding that the trial court erred in giving a series of instructions on the subject of undue influence regardless of their correctness as abstract propositions of law, because there was no evidence on that subject, counsel do not deny the correctness of the holding in the abstract, nor that it was error in the trial court to so instruct, but put their reliance upon the proposition that such error was not available to appellants, because they asked the court to give five instructions on the same subject. It might be sufficient answer to this contention that no such defense of that action of the trial court was made in appellees' original briefs on the hearing of this case, and no such question for decision was presented originally, and that the point is made now for the first time.

There was nothing said in the original briefs or argument about appellants being precluded or estopped by inviting the error in asking instructions on the same subject. It is too late to raise a point or present a question for the first time on a petition for a rehearing. But there is no merit in the point any way, because it does not appear from the record that appellants are the parties that invited the error.

The authority cited in support of the point is Elliott App. Proced., section 625-630. It is said in the latter section that: "The rule that a party cannot successfully assail a decision given upon his express or implied invitation is really nothing more than an application of the general principle that parties will be held to the theories they present and upon which they secure action by the court."

The rule as stated in Pence v. Waugh, 135 Ind. 143, at page 150, 34 N.E. 860, is: "'If a party opens the door for the admission of incompetent evidence he is in no plight to complain that his adversary followed through the door thus opened.'" Perkins v. Hayward, 124 Ind. 445, 24 N.E. 1033. The rule as stated in Louisville, etc., R. W. Co. v. Miller, 141 Ind. 533, 37 N.E. 343, [144 Ind. 484] at page 563, is "that a party cannot successfully complain of error he invites."

The record does not show that appellants were the parties that invited and led the court into an erroneous line of conduct. On the contrary, it appears that the court acted on appellees' invitation into error, and did not act on appellants'.

Another point urged upon our consideration which we deem worthy of notice, is the holding in the original opinion that the forepart of the 7th instruction given by the court was erroneous, is seriously complained of because it is not pointed out in the opinion that there is anything analogous in the instructions passed on in the cases cited, to that contained in the one in hand.

It ought to be sufficient to say in response to this criticism that the language of the opinion is taken largely from one of those cases. One sentence in that instruction ought to condemn it if there was not other objection to it, relating as it does to the weight of expert testimony; that sentence reads thus: "In proportion to the degree of such harmony between the facts embraced in the hypothetical questions and those embraced by the evidence, and the skill and capacity of these experts judging by the law of mind, to deduce therefrom just conclusions, will be the value and force of such testimony."

It does seem that one who is so good a master of English as the learned counsel of appellee need not to be told that the language quoted makes the value and force of the expert testimony depend entirely upon the degree of harmony between the facts embraced in the hypothetical questions and those established by the evidence.

There is no other part of that instruction that qualified it in this respect.

That is, if there was perfect harmony between the facts assumed in the hypothetical questions and those proven by the evidence, then the instruction, if it meant anything, meant such expert testimony was at least of great value and force regardless of the conduct and actions of such witnesses on the stand, the materiality of the facts assumed, the partiality or impartiality of such witnesses, and many other circumstances that the jury had a right to, and which it was their duty to take into consideration in weighing the testimony of such witnesses. It is true that if the facts assumed in the hypothetical questions are not substantially proven by the other evidence, the expert testimony thus elicited will be of little or no value. But it does not follow, on the other hand, that such expert testimony is entitled to full credence and belief or deemed of great value simply because the facts assumed in the hypothetical questions to the expert witnesses were fully proven by the other evidence. But such was the force and effect of the instruction. In Goodwin v. State, 96 Ind. 550, at page 569, it was held upon this subject that: "It is proper for the court to direct the minds of the jury to the facts of the case, but it is not proper for it to annex weight and value to them; that is the exclusive province of the jury." To the same effect is Garfield v. State, 74 Ind. 60.

The credibility of expert witnesses and the weight of their testimony are as much subject to the scrutiny and determination of the jury as that of any other class of witnesses that may come before them.

But the most serious objection urged against our original opinion relates to our holding on the instructions touching unsoundness of mind.

Counsel quote portions of the instructions other than the 8th, quoted by us in the original opinion, and repeating the same proposition contained in the 8th in different language, namely, as in the 7th, and which we here reproduce from their brief thus: "If you believe from such evidence, when considered in connection with all the other proofs in the case, that during the period of time in which the will of the testator was executed he was of unsound mind, then it will be your duty, in like manner, to find for the plaintiffs;" as in the 2d, "Under the law of this State, a person of unsound mind cannot make a will, and a person of unsound mind means an idiot, non compos, lunatic, monomaniac or distracted person," as in the 12th, "If you are satisfied by a preponderance of the evidence that when he executed the will the testator was of unsound mind you should find for the plaintiffs," and as in the 13th, "you are to say whether or not the testator was of sound mind at the time of the execution of the will. If he were not of sound mind you will, of course, find for the plaintiffs."

The learned counsel say that our version of these instructions that they "in effect told the jury that if the testator was a person of unsound mind, even though such unsoundness was so slight that it had no influence or effect in the production of the will, or in the disposition of property therein provided for, the will would nevertheless be void," is, as they say, a startling interpretation.

No reason is given or argument made why a direction to the jury that "If he [testator] was not of sound mind you will, of course, find for the plaintiffs," does not mean that they are to so find regardless of the degree of mental incapacity and regardless of the fact that such unsoundness did not deprive him of testamentary capacity, or enter into or affect the will or the manner of the disposition of the property therein made. Or why a direction to the jury that if at the time the testator executed the will "he was of unsound mind, then it will be your duty in like manner to find for the plaintiffs," does not require them to so find, even though the evidence clearly showed that the unsoundness of mind was of such a character as did not deprive him of testamentary capacity according to the legal standard.

Nor is any reason or argument suggested, nor do we know of any, why the direction in the 8th instruction that: "It will be sufficient to avoid the will * * if * at the time it was executed the testator * * was a person of unsound mind" did not authorize and require the jury to set aside the will on account of such unsoundness, even though its degree did not destroy testamentary capacity or exert any influence on the testator as to the manner of disposing of the property or enter into the execution of the will.

These instructions were unqualified, and the full operation, force and effect of their language could not be cut down and limited by anybody but the court.

If the court had explained in these instructions, as was done in Lowder v. Lowder, 58 Ind. 538, and many other cases in this court like it, what was the legal signification of the phrase of unsound mind, then the instructions might have been correct. In the case last named the instruction, after stating that a person of unsound mind cannot make a will, proceeded to explain what was meant in contemplation of law by the phrase of unsound mind, stating that a lack of a certain degree of mental soundness or capacity was in contemplation of law unsoundness of mind. And on the other hand a certain degree of mental soundness or mental capacity was soundness of...