Burkhart v. Gladish

Decision Date22 April 1890
PartiesBurkhart et al. v. Gladish et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Pike county; O. M. Welborn, Judge.

Rev. St. Ind. 1881, § 499, provides that “in all suits by or against heirs or devisees, founded on a contract with or demand against the ancestor, to obtain title to or possession of property * * * of such ancestor, or to affect the same, * * * neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor.”

J. E. McCullough, J. H. Miller, E. P. Richardson, and A. H. Taylor, for appellants. Townsend, Flower & Smith and Posey & Honeycut, for appellees.

Coffey, J.

This was an action by the appellees against the appellants to contest and set aside the last will of Peter Burkhart. The complaint, omitting the caption and formal parts, is substantially as follows: “That Peter Burkhart departed this life on the 20th day of July, 1887, leaving the plaintiffs and defendants herein, except Noah Burkhart, as his only children and heirs at law; that on the 22d day of July, 1887, a certain writing, purporting to be his last will and testament, bearing date March 14, 1885, was presented to and admitted to probate by the clerk of the Pike circuit court, and was filed and recorded in the record of wills in said county, and letters were thereupon issued to the defendants Noah Burkhart and Noah A. Burkhart, as executors of said pretended will, who thereupon qualified, and took charge of all the property, both real and personal, named in said pretended will, which estate is of the probable value of twelve thousand dollars, [a copy of said pretended will is filed with the complaint;] that by the terms of said pretended will the defendants, Noah A. Burkhart, Adam G. Burkhart, General Burkhart, and Caroline Morgan are named as devisees and legatees therein, and are given thereby the whole of the property of the said Peter Burkhart, except thirty-six and 60-100 acres of land, which is by the terms of said pretended will set apart to discharge the debts which the said Peter Burkhart owed at the time of his death, with the provision that whatever might be left after the payment of said debts should be divided equally among the plaintiffs and defendants herein, except the said Noah Burkhart; that the personal estate of the said Peter Burkhart, together with said land, will not be more than sufficient to pay said debts; that the provisions of said pretended will entirely exclude the plaintiffs, who are entitled, as the heirs of said Peter Burkhart, to a five-ninths part in value of said estate; that said pretended will is invalid for the following reasons: The said Peter Burkhart, at the time of the execution of said pretended will, and for many years prior hereto, and down to the day of his death, was not the possessor of a sound mind and disposing memory, but on the contrary, was in a state of partial insanity, produced by the long continued and excessive use of alcoholic stimulants, and was afflicted with and subject to insane delusions concerning his wife and these plaintiffs, and the husbands of said Selina J., Harriet A., and Susan; that for many years prior to the execution of said pretended will he was continually under the influence of said insane delusion, and was furiously jealous of his wife, a woman of spotless reputation for chastity, and constantly charged her with licentious intentions and conduct towards every male person with whom she chanced to have any conversation; that, influenced by said insane delusion, he openly charged his said wife with having criminal intercourse with the husbands of his and her own daughters, and with having borne children by them; that for fifteen years next before the execution of said pretended will he made his wife and said children the victims of his insane jealous rage, and would, at divers times within said period, have murdered his said wife on account of said insane delusion, but he was prevented from so doing by the timely interference of other parties.”

E. P. Richardson was appointed guardian ad litem for General Burkhart, who was shown to be a minor, and filed an answer as such, denying the allegations in the complaint. The other appellants, being adults, also filed the general denial to the complaint, and the cause was at issue. The cause was tried by a jury, who returned a general verdict for the appellees, and with said general verdict they also returned answers to special interrogatories. The appellants filed a motion and reasons for a new trial, which was overruled and excepted to. The court also overruled a motion in arrest of judgment, and then rendered a decree setting aside the will mentioned in the complaint, and revoking the probate thereof. The errors assigned are: (1) That the court erred in overruling the motion for a new trial; (2) that the court erred in overruling the motion in arrest of judgment; (3) that the complaint does not state facts sufficient to constitute a cause of action.

The sufficiency of the complaint is questioned for the first time in this court, and when so questioned it is settled that, if the complaint would be good after verdict, or is sufficient to bar another action for the same cause, it is sufficient to withstand such an attack. Laverty v. State, 109 Ind. 217, 9 N. E. Rep. 774; Harper v. Pound, 10 Ind. 32. The contention of the appellant is that, as it is not alleged that the partial insanity and the delusions set out in the complaint in any way influenced the mind of the testator in the execution of the will in controversy, it does not show any legal reason for setting aside such will. It is contended that a person who is only partially insane may execute a valid will, but no authority in support of this position is cited by counsel. The question, therefore, is presented as to whether partial insanity is, within the meaning of our statute, (section 2556, Rev. St. 1881,) unsoundness of mind. Delusion and insanity are sometimes used as meaning the same thing. Ewell, Lead. Cas. 66. “Delusion” and “insanity” are but terms which we use to indicate a diseased mind. The term “unsound mind,” as used in our statute, includes every species of unsoundness of mind. Willett v. Porter, 42 Ind. 250;Eggers v. Eggers, 57 Ind. 461. In the case last cited it was held that a person who has become the victim of mental derangement, amounting to insanity in any form, is, under our statute, incompetent to make a will; and that an instruction to the effect that, though the testator might have been insane to some extent, yet such insanity would not a void the will, unless it could be shown to have entered into or affected the will itself, was erroneous. The rule as here stated, we think, needs some modification, and is, in fact, modified by the other cases upon the same subject decided by this court. It is undoubtedly true that a person of unsound mind is incapable of executing a will; but the question always arises in cases of this kind as to what the degree of mental infirmity is which the law recognizes as insanity, or such unsoundness of mind as incapacitates a person from making a will. While the law does not under take to...

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    ... ... Lamb v. Lamb (1885), 105 Ind. 456, 5 N.E. 171; Burkhart v. Gladish (1889), 123 Ind. 337, 24 N.E. 118 (exception stated); Mitchell v. Walton (1922), 192 Ind. 193, 133 N.E. 496; Kennedy v. Kennedy (1922), ... ...
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