Davis v. Babb

• Decision Date: 12 December 1919
• Docket Number: No. 23259.,23259.
• Citation: 125 N.E. 403,190 Ind. 173
• Parties: DAVIS et al. v. BABB et al.
• Court: Indiana Supreme Court

190 Ind. 173

125 N.E. 403

DAVIS et al.

v.BABB et al.

No. 23259.

Supreme Court of Indiana.

Dec. 12, 1919.

Appeal from Circuit Court, Bartholomew County; John W. Donaker, Judge.

Suit by John P. Babb and others against William H. Davis, executor of the last will and testament of Mary L. Taylor, deceased, and others, to contest the validity of the will and a codicil thereto. Judgment for plaintiffs, a new trial was denied, and defendants appeal. Affirmed.Dixon & Meloy, of North Vernon, Montgomery & Montgomery, of Seymour, and Kollmeyer & Sharpnack, of Columbus, for appellants.

Pogue, Hoffheimer & Pogue, of Cincinnati, Ohio, Korbly & New, of Indianapolis, and James F. Cox and A. W. Phillips, both of Columbus, for appellees.

WILLOUGHBY, J.

This was a suit to test the validity of a will and codicil of one Mary L. Taylor. The complaint was in one paragraph, and alleged that on the 16th day of May, 1914, an instrument in writing, bearing date March 12, 1906, and purporting to be the last will and testament of said Mary L. Taylor, and also an instrument in writing, bearing date of May 1, 1913, and purporting to be a codicil to said pretended last will and testament, were both produced before the clerk of the Jennings circuit court, and were then and there admitted to probate as the last will and testament and codicil thereto of said Mary L. Taylor; and that one William H. Davis was appointed executor of said will and codicil, who accepted the trust and qualified as such executor; and the complaint further alleges that the instrument in writing so admitted to probate as the last will and testament of said Mary L. Taylor, deceased, was not her will, and that said instrument in writing and so admitted to probate as a codicil to said will is not a codicil to said will, and that the probate of both said pretended will and pretended codicil should be revoked for the reason that at the date of the execution of said pretended will and at the date of the execution of said pretended codicil said Mary L. Taylor was of unsound mind, and incapable of making said will or codicil; that said pretended will and said codicil were both unduly executed, and were executed under duress.

The defendants answered said complaint by general denial. There was a trial by jury, and a verdict in favor of appellees, finding that the said Mary L. Taylor, at the time of making said will and at the time of making the codicil thereto was of unsound mind, and that the will and codicil were procured by undue influence and under duress; and on this verdict the court rendered a judgment, reciting that at the time of making said will and said codicil Mary L. Taylor was of unsound mind and incapable of making a will and codicil, and that the probate of said will and codicil be set aside and vacated. From this judgment the appellants appeal, and assigned as error that the circuit court erred in overruling the motion of appellants for a new trial.

The jury by answering interrogatory No. 1 found that the testatrix, Mary L. Taylor, was of unsound mind May 1, 1913, at the time of executing the codicil in suit. The jury also found by answering interrogatory No. 2 that the testatrix on the 1st day of May, 1913, at the time of executing the codicil to the will in suit, was controlled by undue influence. The appellants claim in the motion for a new trial that the jury made incorrect and untrue answers to interrogatories, and that such answers constituted a charge of misconduct of the jury, within the meaning of section 585, Burns 1914.

[1][2] This position cannot be maintained. Juries are presumed to do their duty, and a charge of misconduct must be affirmatively shown by the facts. M. O'Connor & Co. v. Gillaspy, 170 Ind. 428, 437, 83 N. E. 738. If the answers to interrogatories returned by the jury are without support in the evidence, that fact is of no importance unless the same insufficiency of evidence serves to overthrow the general verdict. Chicago, etc., R. Co. v. Cobler, 172 Ind. 481, 87 N. E. 981;Board, etc., v. Nichols, 139 Ind. 611, 620, 38 N. E. 526;Burkhart v. Gladish, 123 Ind. 337, 344, 24 N. E. 118;Aufderheide v. Rohr, 118 N. E. 823.

[3] The appellants contend that the verdict of the jury is not sustained by sufficient evidence. The sufficiency of the evidence to sustain a verdict on appeal depends solely on the presence in the record of some competent evidence which tends to support that verdict. Young v. Older, 183 Ind. 646, 649, 109 N. E. 909;City of Bloomington v. Moore, 183 Ind. 283, 287, 109 N. E. 42;Pence v. Myers, 180 Ind. 282, 285, 101 N. E. 716.

[4] In determining whether the evidence is sufficient to sustain the verdict of the jury, this court will consider, not only the positive testimony of the witnesses, but also such inferences as flow naturally from established facts. Chicago, etc., R. Co. v. Lake Co. Savings, etc., Co., 186 Ind. 358, 362, 114 N. E. 454;Southern Product Co. v. Franklin, etc., Co., 183 Ind. 123, 124, 106 N. E. 872.

[5] The evidence in this case is too voluminous to set out in this opinion. The appellants introduced 129 letters written by testatrix to William H. Davis between the time of Edmund Babb's death and the death of testatrix. In our opinion there is some evidence to support every material allegation of the complaint. The issue of undue influence joined in this case, like other questions, must be determined from all the facts and circumstances given in the evidence. The ultimate inference of undue influence, or its absence, was one of fact to be drawn by the jury, and not to be declared by the court as a matter of law. The exercise of undue influence may be shown by circumstantial evidence, and the provisions of the will and the circumstances attending its execution may be sufficient to warrant a finding against its validity. Friedersdorf v. Lacy, 173 Ind. 429, 436, 90 N. E. 766.

Such is the nature of the human mind that, when it has been habituated to the influence of another, it will yield to that influence and suffer it to have its effect, although the person in the habit of its exercise may not be present or exert it at the time an act is done. It may happen that the fruit of an evil and improper influence is born long after the influence is exerted. Taylor v. Wilburn, 20 Mo. 306, 64 Am. Dec. 186;Lisle v. Couchman, 146 Ky. 345, 142 S. W. 1023.

[6] Undue influence need not be proven by direct and positive evidence, but it may be inferred from or shown by the facts and circumstances in evidence. Nor is it necessary that the overt acts of undue influence should have been exercised at the exact time of the execution of the will and codicil, but it is sufficient to show that such influence over the mind of the testator had been acquired previously and did operate at the time the will and codicil were made. Mowry v. Norman, 204 Mo. 173, 193, 103 S. W. 15.

In the contest of a will on the ground of undue influence the evidence required to establish the undue influence need not be of that direct, affirmative, and positive character which is required to establish a tangible physical fact. The only positive and affirmative proof required is of facts and circumstances from which the undue influence may be reasonably inferred. Blackman v. Edsall, 17 Colo. App. 429, 68 Pac. 790.

In the case just cited, Blackman v. Edsall, supra, the court says:

“The chief complaint and contention of the proponent is that the evidence presented and upon which the jury based its verdict sustaining the charge of undue influence was insufficient by reason of its lacking in that affirmative and positive character which is claimed to be necessary. It follows from the very nature of the thing that evidence to show undue influence must be largely in effect circumstantial. It is an intangible thing which only in the rarest instances is susceptible of what may be termed direct or positive proof. The difficulty is also enhanced by the fact universally recognized that he who seeks to use undue influence does so in privacy. He seldom uses brute force or open threats to terrorize his intended victim, and if he does he is careful that no witnesses are about to take note of and testify to the fact. He observes, too, the same precautions if he seeks by cajolery, flattery, or other methods to obtain power and control over the will of another and direct it improperly to the accomplishment of the purpose which he desires.”

And again in the same case the court says:

“Only general rules concerning the amount and character of evidence required to establish undue influence in the execution of a will can be laid down. As to what is sufficient must depend upon the facts and circumstances of each particular case.”

[7] Appellants contend that John P. Babb, a brother of testatrix, and Lucy Boyd and Harriet B. Sargent, nieces of testatrix, were not competent witnesses to testify to matters occurring during the lifetime of testatrix. The sanity of testatrix was in issue in this case, and such evidence was competent on that issue. When the sanity of a testator is in question, the fact of the sanity or insanity of such person is a matter which is open to the observation of the public. And it is competent for these witnesses, although parties to the suit, to testify in regard to all matters bearing upon the question of the sanity of the testatrix.

[8] Appellants in their brief, under point III, assert that many prejudicial and harmful statements and declarations attributed to William H. Davis, executor of the will, were admitted in evidence over the objections of the defendants. It appears from the nature of the alleged “prejudicial and harmful statements and declarations” attributed to William H. Davis and admitted in evidence that they consisted of statements and assertions during the life of testatrix amounting to verbal acts and conduct having a tendency to show that William H. Davis did exert a controlling authority over the testatrix and that...