Blough v. Parry

• Decision Date: 19 March 1895
• Docket Number: 16,874
• Citation: 40 N.E. 70,144 Ind. 463
• Parties: Blough et al. v. Parry et al
• Court: Indiana Supreme Court

40 N.E. 70

144 Ind. 463

Blough et al. v. Parry et al

No. 16,874

Supreme Court of Indiana

March 19, 1895

Reported at: 144 Ind. 463 at 482.

From the Elkhart Circuit Court.

The judgment is reversed and the cause remanded, with directions to sustain the appellants' motion for a new trial.

Drake & Merritt and A. Ellison, for appellants.

R Lowry, J. E. McClaskey and J. W. Hanan, for appellees.

OPINION

McCabe, C. J.

The appellees brought suit in the Lagrange Circuit Court against the appellants to contest the will of one Noah Blough. Proper issues having been formed upon the complaint the venue of the cause was changed to the Elkhart Circuit Court, where a trial by jury resulted in a verdict and judgment in favor of the appellees, setting aside said will over appellants' motion for a new trial. The only error assigned here is on the action of the circuit court in overruling appellants' motion for a new trial. The grounds of contest alleged in the complaint were unsoundness of mind of the testator and undue influence exerted over him by the appellants.

A great number of causes are assigned therefor in the motion for a new trial, some of which we will notice. One Emma Norris was called and testified as a witness on behalf of the appellants. The wife of the testator had been dead some years, and Miss Norris had been the sole housekeeper of the testator for several years since the death of his wife, up to and during the time when the will was made. She had testified to many acts, conversations and conduct of the testator during that time, and upon such facts had stated her opinion that the testator was of sound mind. She had also testified that during that time he was able to get into or out of a buggy alone and hitch up his horses, and that appellant, Valentine, was always kind and filial toward his father.

Some days after she had thus testified on behalf of appellants the appellees recalled her, as they claimed, for further cross-examination, whereupon they propounded to her the following question: * * "While you were working for Mr. Noah Blough, did not Valentine Blough come there one day and tell his father that he wanted him to go to Ellison's bank, that he had some important business to transact, * * and was not his father at that time sick and in his bed, and * * did not his father say to him: 'I am not well enough to go and don't want to go,' that Valentine said 'Pap, it is important business and you must go,' and did he not take him out of bed, put his clothes on and put him into the buggy and drive off with him, * and did he not return with his father on the same day and help him out of the buggy at the gate, and did his father * not crawl in on his hands and knees to the house and lie down upon the floor and cry bitterly and state that Valentine had taken him up to Ellison's bank and had him sign some papers, that he didn't know what they were, but supposed it was a will?"

Over appellants' objection that the question was not proper cross-examination, the witness was permitted to answer that she knew nothing of such happening.

Appellees then propounded to her, to lay the foundation to impeach her, the following question:

"Did you not have a conversation with Charles Parry and William Blough, at Noah Blough's house, in the month of March, 1887, and did you not then and there state to them that some days before that Valentine Blough had come to his father's house, and his father was sick and in bed, and told him that he wanted him to go with him to Ellison's bank, that he had some important business to transact; that his father said he was not well enough to go and did not want to go, that Valentine said 'Pap, it is important business and you must go,' that Valentine got his father out of bed, put his clothes on for him, took him out of the house and put him in the buggy and drove off toward Lagrange; that later in the day Valentine came back with his father, helped him out of the buggy and drove off; that his father crept into the house on his hands and knees and laid down on the floor and cried bitterly and said that Valentine had taken him up to Ellison's bank and caused him to execute some papers; that he did not know what they were, but supposed it was a will?"

Over appellants' objection that the question was not proper cross-examination, she not having been examined on that subject in chief, and that the question was not proper for the sole purpose of impeachment, the witness was allowed to answer that she had no recollection of ever talking with them at that time, or any other time.

The appellees then called said Charles Parry and William Blough and asked them if the witness, Emma Norris, had not made the statements attributed to her in the question at the time and place indicated therein, and they each answered that she had, over appellants' objection that the answers were not sufficient ground for impeaching the witness, and that it was not competent to prove undue influence by impeachment.

We think the court erred in permitting these questions to be answered.

The witness, Emma Norris, had, it is true, testified to many facts tending to establish the soundness of the testator's mind; but she had not testified to anything tending to negative the charge of undue influence in the procurement of the will, especially had she given no testimony on that branch of the case that was even inconsistent with her alleged statement to these two witnesses. One of the recognized methods of impeaching a witness is to prove that he has made statements out of court inconsistent with his evidence in court. It is not every statement made out of court by a witness that affords a ground of impeaching him. It is only such statements made out of court contrary to the testimony of the witness in court, where such testimony relates to a material matter in issue. Paxton v. Dye, 26 Ind. 393; Seller v. Jenkins, 97 Ind. 430; Horne v. Williams, 12 Ind. 324; Fogleman v. State, 32 Ind. 145. But there must be contradiction between the statements alleged to have been made out of court and those made on the witness stand to afford a ground of impeachment by proving the statements made out of court. Seller v. Jenkins, supra. There was no such contradiction in this case. Therefore, there was no right to ask the question of the witness, Emma Norris, by the appellees for the mere purpose of laying the foundation for impeaching her. Conceding, without deciding that appellees did have the right to prove by her, or any other witness, the facts detailed in her alleged statement out of court to the two witnesses named at the proper time, because the other evidence discloses that on the day named in that statement the will was made in Ellison's bank in the town of Lagrange, and that the statement, if true, would tend to prove one of the grounds specified in the complaint for setting aside the will, namely, undue influence exerted over the testator by Valentine and other appellants; but when appellants asked Miss Norris whether those facts as detailed in the alleged statement occurred, and she answered in the negative, that was the end of their rights in that direction. For the purpose of proving the facts mentioned she was the appellees' witness. And though the statute authorizes a party in some instances to impeach his own witness, it has been held by this court, and, we think, correctly so, that such right only arises when the witness testifies to some matter prejudicial to the party calling him. Burns R. S. 1894, section 516 (R. S. 1881, section 508). In Hull v. State, ex rel., 93 Ind. 128, at page 133, this court said: "Where a witness does not testify to anything prejudicial to the party calling him, there can be no object in impeaching him, and hence the statute cannot apply to such case. Nor can it apply to a case where a witness fails to testify to such facts as he is called to prove. Such testimony, though not beneficial, is not prejudicial, and, therefore, no reason exists for impeaching the witness." The witness, Emma Norris, did not testify to the facts sought to be proven by her, and therefore no right arises to impeach her for her failure to testify to such facts.

This alleged impeaching testimony, under the circumstances, probably had a prejudicial influence on the jury. The evidence in support of the charge of unsoundness of mind was sharply conflicting, and as it comes to us we cannot say that it was of such a character that the jury must have based their verdict on the conclusion that the preponderance thereof was with the appellees on the charge of unsoundness of mind of the testator when he executed the will, and therefore we cannot say that they did not base their verdict on the charge in the complaint of undue influence exerted by the appellees. We have been unable to find any evidence in the record tending to support the charge of undue influence, aside from the alleged impeaching testimony already mentioned.

The court, of its own motion, gave seven long instructions on the subject of undue influence. One of them, the 10th, reads as follows: "10. The amount of undue influence which is sufficient to invalidate the will varies, of course, with the strength or weakness of the mind of the testator. The influence which would subdue and control a mind naturally weak, or one which had become impaired by age, disease physical injury, family troubles and perplexity, or other causes, might have no effect to overcome or mislead one naturally strong and unimpaired. The influence that will avoid or vitiate the will of a testator whose mind is thus weak and enfeebled need only be such as would, and did, cooperate with such weakness and feebleness of mind to the extent of supplanting the free agency of the testator...