Conway v. Vizzard

• Decision Date: 25 February 1890
• Citation: 23 N.E. 771,122 Ind. 266
• Parties: Conway v. Vizzard et al.
• Court: Indiana Supreme Court

122 Ind. 266

23 N.E. 771

Conway

v.Vizzard et al.

Supreme Court of Indiana.

Feb. 25, 1890.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

L. M. Ninde and Randall & Vesey, for appellant. Wm. P. Breen, for appellees.

Coffey, J.

This was a suit, by the appellant against the appellees, to contest and set aside the will of Anthony Gallagher. The complaint alleges: First, that at the time of the execution of the will the testator was a person of unsound mind, and incapable of executing a will; second, that the will was procured through fraud, coercion, and undue influence. A trial of the cause before a jury resulted in a verdict for appellees. In addition to the general verdict, the jury, in answer to interrogatories, found that the will was executed without any fraud, coercion, or undue influence, and that at the time of its execution the testator was a person of sound mind. The only question involved in this appeal relates to the propriety of the ruling of the circuit court in refusing to grant the appellant a new trial.

It is earnestly insisted by the appellant that the circuit court erred in its instructions to the jury. The instructions are quite lengthy, covering many pages of the record; but we need give attention to those only to which specific objections are made. In the fifth instruction asked by the appellee, and given to the jury, the court said: “It is proper for the jury to consider any statement which may have been made by the testator, before the making of his will, in reference to what he intended to do with his property. If you should find from the evidence that, when he was in good health, he stated his intention of disposing of his property substantially as it is disposed of in the will, this is an important fact to be considered by you in determining the validity of the will, and as tending to its support.” The sixth instruction in the case of Bundy v. McKnight, 48 Ind. 502, is substantially the same as the instruction now before us. The same instruction was repeated in the case of Lamb v. Lamb, 105 Ind. 456, 5 N. E. Rep. 171. In each of these cases the instruction was held to be a correct exposition of the law as applied to the issue of unsoundness of mind. It is equally well settled, however that such declarations cannot be considered in connection with the issue of undue influence. Hayes v. West, 37 Ind. 21;Todd v. Fenton, 66 Ind. 25;Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433. Indeed, it is not denied by the appellant that this instruction correctly expresses the law as applicable to the issue of insanity, but the contention is that the instruction is so worded as to lead the jury to the conclusion that the rule as thereby announced was applicable, also, to the issue of undue influence. Instructions are not to be considered in detached portions, but must be considered as a whole; and, when so considered, if they state the law correctly, they will be upheld, though some particular instruction in the series, when considered by itself, may seem too be too broad or too narrow. As said of the instruction in the case of Bundy v. McKnight, supra, so in this case the instruction must be considered in connection with the other instructions in the cause. The instruction in controversy is found in a series of instructions upon the subject of insanity. The third instruction is as follows: “A man of sound mind has a full right to dispose of his property as he pleases. Courts or juries have no power to supervise the making of wills by sound-minded men. We have no power to say what kind of wills men shall make. We have no power to set aside wills because they are not as they should be, nor because they are not such wills as we should have made. Men have the same right and power to dispose of their property by will as by deed.” The fourth instruction is also upon the subject of unsoundness of mind. The sixth instruction is as follows: “To make a valid will, a man need not be in the full possession of his reasoning faculties, nor in the possession of an unimpaired memory. A large number of wills are...