Bower v. Bower

• Decision Date: 09 October 1895
• Docket Number: 17,214
• Parties: Bower et al. v. Bower et al
• Court: Indiana Supreme Court

41 N.E. 523

142 Ind. 194

Bower et al. v. Bower et al

No. 17,214

Supreme Court of Indiana

October 9, 1895

From the Clark Circuit Court.

The judgment is reversed, and the cause remanded with instructions to the trial court to sustain the motion for a new trial.

Burtt & Taggart, M. Z. Stannard and C. L. Jewett, for appellants.

J. K Marsh and W. H. Watson, for appellees.

OPINION

Jordan, J.

This action was instituted by the appellees in the Clark Circuit Court to contest the validity of the will of Andrew Bower deceased. The complaint, inter alia, shows that the testator died in Clark county, Indiana, on July 18, 1892 leaving surviving him the appellees, who are his children and grandchildren and heirs at law. The will in contest bears date of September 5, 1887, and its validity is assailed upon the grounds:

1. That the testator at the time of its execution was of unsound mind.

2. That it was unduly executed.

3. That it was procured to be executed through the fraud of the defendants.

A trial by a jury resulted in a verdict in favor of the contestants, and over a motion for a new trial the court adjudged the will to be null and void, and revoked and set aside the probate thereof.

Appellants in this appeal, have assigned five alleged errors of the trial court, but the 3rd and 5th are the only ones that are argued by their learned counsel, and therefore the consideration of the others must be deemed to be waived.

Appellants in the court below filed an answer to the complaint in two paragraphs. The first was a general denial. The second was intended to be in bar, and was directed to so much of the complaint as alleged a cause of action in favor of appellee Margaret C. Bower.

By this paragraph certain facts were averred showing that this appellee, who is a daughter of the deceased testator, had, on March 15, 1882, received from the latter a conveyance of certain described real estate, situated in the aforesaid county of Clark, and that said realty had been received by her in full consideration of all claims as an heir against her said father's estate, and it was therein prayed that by reason of said facts she be barred and estopped from prosecuting the action.

On motion of the appellee Eliza Bower, the court struck out this second paragraph, and by their third assignment appellants affirm that in this the court erred. They insist that the provisions made for appellee by the alleged conveyance of land to her were in the nature of an advancement, and in consideration of the facts that she received the same, and agreed to make no claim against her father's estate, she was estopped from joining as a contestant in this action. Counsel cite us to no authority, and we are not aware of any that will support this contention. If the conveyance of the property was by way of advancement in full of her interest as an heir in the estate under an agreement, then it perhaps might be a matter proper to be set up and considered against Margaret C., if the estate should come to be partitioned, or distributed under the statutes of descent. See section 2479, R. S. 1881; section 2636, R. S. 1894; section 1189, R. S. 1881; section 1203, R. S. 1894. See Stokesberry v. Reynolds, 57 Ind. 425; Brown v. Brown, 139 Ind. 653, 39 N.E. 152. This point, however, is not before us in this case, hence we do not decide it. In any event, however, we think that the facts set up in this paragraph were not in any way relevant as a defense in bar of appellee's right to contest the will. They did not confess and avoid the cause of action alleged in the complaint, nor tend to constitute a cause of defense thereto and would have served only to inject a collateral issue into the proceedings, and the court did not err in sustaining the motion to reject this paragraph.

Under the fifth assignment it is averred that the court erred in overruling the motion for a new trial. Appellants do not ask that we review the evidence in order to ascertain if it is sufficient to support the verdict of the jury. They say that it was a duty which rested upon the trial judge, and if any injustice was done by not sustaining the motion for a new trial upon that ground, the blame must be chargeable to him, and not to this court. It is next claimed that the court erred in not striking out certain declarations of the testator, testified to by Margaret C. Bower. The alleged objectionable evidence given by this witness is substantially as follows:

"He (referring to the testator) got to talking of some one that had made a will, and he said 'it was foolishness for any man to make a will,' and I said, 'why, ain't you going to?' and he said, 'No, I never allow to make a will,' and I said, 'why,' and he said, 'it was not right to make a will.'"

The objections to this evidence as stated in the motion to strike out were:

1. That it was hearsay.

2. That these declarations were made prior to the execution of the will, and in the absence of the defendants.

3. Because they did not tend to support the opinion of the witness as to the mental condition of the testator at the time of the execution of the will.

This witness seems to have been examined by appellee, relative to the testator's alleged unsoundness of mind. She detailed to the jury conversations had with him, and his appearance, and condition for a number of years before the execution of the will, and on down to his death. These particular declarations, against which the objections are urged, were made in one of the several conversations referred to by this witness, and occurred as the witness said, about ten years prior to the trial, which apparently made the conversation occur about four years before the date of the execution of the will. After stating all of the facts to the jury, the witness was asked whether or no, in her opinion, the testator, was, at the time of the execution of the will in question, a person of sound or unsound mind, and she answered that she thought he was of unsound mind.

Appellants contend that the statements made by the testator in this conversation, about making a will, did not tend to support the opinion given by this witness, for the obvious reason, as they say that they were made some three or four years before the will was executed, and therefore, too remote from the time which the witness was asked to give her opinion. This witness was not an expert, and therefore, to render her opinion competent as to the mental condition of the testator, she was first required to state to the jury the facts upon which it was founded. This necessarily included what the testator said in conversations had, and the manner in which he conducted himself, etc. Staser v. Hogan, 120 Ind. 207, 21 N.E. 911.

While it is true that in cases like the one at bar, where the mental capacity of the testator is involved, the principal question under investigation upon this issue is, was he of unsound mind at the time the will in controversy was executed? However, as bearing upon the mental condition of his mind at this given time, facts and circumstances which tend to show his mental condition, both prior and subsequent to the execution of the will in contest, may be received in evidence. This rule is recognized by the decisions of this court. Dyer v. Dyer, 87 Ind. 13; Staser v. Hogan, supra. Of course the period of time that may be covered by the examination, relative to the mental capacity of the person in question, both prior and subsequent to the execution of the will, under all the circumstances in each particular case, must necessarily be left, to a great extent, to the sound discretion of the trial court, the abuse of which may be subject to review upon appeal.

Under the rule permitting a nonexpert to give an opinion, it may be, and frequently is, difficult to fix a limit to the facts about which the witness may testify, as it is evident that the weight of the opinion given must of necessity depend upon the facts upon which it is based. Cline v. Lindsey, 110 Ind. 337, 11 N.E. 441; Burkhart v. Gladish, 123 Ind. 337, 24 N.E. 118.

The opinion is of weight only so far as it is reasonably supported by the facts. The rule is well stated by a standard author:

"On the whole, the issue of mental soundness or unsoundness is not to be decided upon the mere opinions of witnesses, however numerous and respectable, but each opinion should be tested by the facts in the case, in order to judge of its probable correctness. It is not the opinion of witnesses upon which reliance is to be placed, by the triers of the case, but from the premises which supplied the conviction in the minds of the several witnesses, the court, or jury, aided by these opinions, and by the maxims of law, must form its own independent conviction and decide accordingly." Schouler Wills, section 209.

If any or all of the facts did not tend to sustain the opinion of the witness, counsel for appellants had the right of testing the same by a cross-examination for the purpose of enabling the jury to properly estimate the weight, if any, to which the opinion of the witness was entitled. Johnson v. Thompson, 72 Ind. 167; Louisville, etc., R. W. Co. v. Wood, 113 Ind. 544, 14 N.E. 572.

The declarations of a testator upon the subject of making wills are competent when his will is contested on the ground of mental incapacity. Staser v. Hogan, supra; Conway v. Vizzard, 122 Ind. 266, 23 N.E. 771.

It must be presumed, until the contrary appears, that the witness based her opinion, not alone upon the declarations of the testator relative to making a will, but upon all the facts and circumstances detailed by her.

As the declarations of the testator were admissible upon the issue of his mental capacity, we must presume that they were admitted for that...