Culp v. Culp

• Decision Date: 27 September 1895
• Docket Number: 17,466
• Citation: 41 N.E. 363,142 Ind. 159
• Parties: Culp et al. v. Culp et al
• Court: Indiana Supreme Court

41 N.E. 363

142 Ind. 159

Culp et al. v. Culp et al

No. 17,466

Supreme Court of Indiana

September 27, 1895

From the Elkhart Circuit Court.

The judgment is reversed, with instructions to sustain the appellants' motion for a new trial.

H. C Dodge, for appellants.

Wilson & Davis, for appellees.

OPINION

Hackney, J.

Elizabeth Weaver, a daughter of Anthony Culp, died February 18, 1892 and her only surviving child was the appellant Rosa Weaver. Thereafter, on May 23, 1892, said Anthony Culp executed his last will, by which he directed the payment of his debts and the erection of a monument from his personal estate, and any residue thereof, he directed, should be equally divided among his children. His one hundred and sixty acres of land he devised, the south half to his wife, during her natural life, and the north half was to be rented and the proceeds applied to the taxes and repairs on the whole, and the residue paid in equal parts to his children. It was further provided that upon the death of the wife, the whole of said lands should be sold and the proceeds equally divided "among all of my children, share and share alike." At the date of the execution of said will the said Anthony Culp had ten living children and the one grandchild, said Rosa Weaver, all of whom were living at the date of his death, to-wit: August 20, 1892. After the death of said Anthony Culp, the appellants brought this action to set aside said will, alleging unsoundness of mind and undue influence. One of the facts, upon which the appellants relied, was that though the testator knew of the death of his daughter Elizabeth, and knew and was on friendly terms with the child, Rosa, he did not mention her name in said will, or make provision therein for her, either directly or as in her mother's right.

At the trial the court gave, among other instructions, the following: "It is undisputed that the decedent left ten living children and one grand daughter, the plaintiff, Rosa Weaver, who is a child of his deceased daughter, Elizabeth. The will uses the term children, which does not include Rosa, as she is a grandchild, and the presumption is that he overlooked or forgot her, and, if she was so overlooked or forgotten, while she would not take under the will, she would take her one-eleventh under the law, just the same as if there were no will, and in that case Rosa will get her share all the same, no matter which way the case is decided."

The question of the correctness of this charge is presented by the record. The appellees insist that the instruction was too favorable to the appellants, in that, by the law, Rosa was included under the designation of "children," and that no presumption that she was forgotten, or was overlooked, was authorized. The appellants, on the other hand, insist that the instruction was harmful to them, in that it advised the jury that the law, notwithstanding the will otherwise disposed of the entire estate, provided one-eleventh thereof for Rosa, and that the verdict could not defeat her in that provision. There can be no doubt that the word "children," having been employed here without manifesting an intent that it should include grandchildren, would not include the granddaughter. West v. Rassman, 135 Ind. 278, 34 N.E. 991; Pugh v. Pugh, 105 Ind. 552, 5 N.E. 673; Cummings v. Plummer, 94 Ind. 403.

That the law made provision for the granddaughter, notwithstanding the disposition of the entire estate to the ten children was, in our judgment, an error, and was such as might have prejudiced the...