Ditton v. Hart

• Decision Date: 02 February 1911
• Docket Number: 21,464
• Citation: Ditton v. Hart, 175 Ind. 181, 93 N.E. 961 (Ind. 1911)
• Parties: Ditton et al. v. Hart et al
• Court: Indiana Supreme Court

93 N.E. 961

175 Ind. 181

Ditton et al. v. Hart et al

No. 21,464

Supreme Court of Indiana

February 2, 1911

From Warren Circuit Court; James T. Saunders, Judge.

Action by Abigail H. Hart and others against Minerva H. Ditton and others. From a judgment for plaintiffs, defendants appeal.

Reversed.

Kumler & Gaylord, McCabe & McCabe and Charles M. Snyder, for appellants.

Stuart Hammond & Simms, Fraser & Isham, Meade S. Hays and W B. Durborow, for appellees.

Monks J. Moris, J., dissents.

OPINION

Monks, J.

This action was brought by appellees against appellants to contest the will of Jane Hawkins, deceased, after probate, on the alleged grounds that the testatrix was of unsound mind when the will was executed, that the will was procured by undue influence, and that it was unduly executed.

A trial of said cause resulted in a general verdict in favor of appellees, and over a motion for a new trial final judgment was rendered setting aside said will. The only errors assigned and not waived call in question the action of the court in overruling appellants' joint motion for a new trial.

It is insisted, however, by appellees that this appeal must be dismissed, because the LaFayette Loan and Trust Company was made a defendant in the court below in its individual capacity, and is not named in that capacity as one of the appellants in this court, but is named as a party appellant in the assignment of errors as the "executor of the last will and testament of Jane Hawkins, deceased, when it was not a party defendant in that capacity in the court below."

It is true that said loan and trust company was not named in the title of the complaint in this case as executor of said will, but the character in which any one is made a party must be determined from the allegations in the complaint, and not by its title. Marion Bond Co. v. Mexican Coffee, etc., Co. (1903), 160 Ind. 558, 563, 65 N.E. 748; Williams v. Dougherty (1906), 37 Ind.App. 449, 77 N.E. 305; Funk v. Davis (1885), 103 Ind. 281, 285, 286, 2 N.E. 739; Beers v. Shannon (1878), 73 N.Y. 292, 297; Tate v. Shackelford (1854), 24 Ala. 510, 60 Am. Dec. 488.

It clearly appears from the allegations in the body of the complaint that said loan and trust company was made a party as the executor of said will, and it appears from an instruction given at the request of appellees, and from other papers in the case, that the case was tried in the court below upon that theory, said theory must therefore be adhered to in this court on appeal. Oolitic Stone Co. v. Ridge (1908), 169 Ind. 639, 83 N.E. 246, and cases cited; Conrad v. Hausen (1908), 171 Ind. 43, 49, 85 N.E. 710; Studabaker v. Faylor (1908), 170 Ind. 498, 507, 127 Am. St. 396, 83 N.E. 747.

It is insisted by appellants that the court erred in giving instructions eight, nine, eleven and fourteen, requested by appellees, and in refusing to give instructions thirty-one, thirty-two, thirty-four and thirty-five, requested by appellants.

Appellees insist that "no question is presented on the evidence or instructions, for the reason that appellants in their brief have not complied with clause five of rule twenty-two of this court." While appellants' brief may not be a model in complying with the requirements of said rule, it is clear from their first brief and reply brief that they have made a good-faith effort to comply with said rule, and that they have substantially complied therewith as to the questions we shall determine. This is sufficient. Howard v. Adkins (1906), 167 Ind. 184, 186, 78 N.E. 665, and cases cited; Stametz v. Mitchenor (1906), 165 Ind. 672, 675, 75 N.E. 579; Teeple v. State, ex rel. (1908), 171 Ind. 268, 271, 86 N.E. 49; Pomeroy v. Wimer (1906), 167 Ind. 440, 450, 78 N.E. 233; Ellison v. Branstrattor (1910), 45 Ind.App. 307, 88 N.E. 963; Indiana Union Traction Co. v. Heller (1909), 44 Ind.App. 385, 89 N.E. 419; Simplex, etc., Appliance Co. v. Western, etc., Belting Co. (1909), 173 Ind. 1, 88 N.E. 682.

Appellees further insist that "no question is presented as to instructions given or refused, because appellants' exceptions to the giving and the refusing to give instructions were separate and several as to each appellant, and could not therefore be properly assigned as causes for a new trial in appellants' joint motion for a new trial, to the overruling of which the exceptions were joint and not several." It is true that the motion for a new trial was the joint motion of all the appellants, and that they jointly excepted to the overruling thereof, and that appellants each severally excepted to the giving and refusing to give the instructions complained of, but it does not follow that no question is presented thereby. It is well settled that a joint assignment of errors, or a joint motion for a new trial, to be sufficient, must be founded on a ruling that is erroneous as to all who join therein. The motion for a new trial in this case was the joint motion of appellants, and called in question the action of the trial court in giving and refusing to give certain instructions. Although appellants took their exceptions to the giving and refusing to give instructions severally, they were all entitled to join in a motion for a new trial, because the court by a single action ruled against all the appellants, and all the appellants took the same exception to the giving and refusing to give the same instructions and they were all affected in the same way by the ruling of the court on said instructions and had a common interest in the result sought by the motion for a new trial. They had the same right to question, by a joint motion for a new trial, the correctness of the action of the trial court in giving and refusing to give said instructions, as if the exceptions had been joint instead of several as to each appellant. Stamets v. Mitchenor, supra. See, also, Whitesell v. Strickler (1907), 167 Ind. 602, 609, 119 Am. St. 524, 78 N.E. 845.

In instruction eight, four mental requisites are stated in the disjunctive by the use of the word "or," that informed the jury that lack of either requirement named, at the time of the execution of the will, if shown by the evidence, would render the testatrix "at that time a person of unsound mind, not having sufficient mental capacity to execute a will; and if the jury so found, the verdict should be for plaintiff."

One of the requisites, the lack of which said instruction informed the jury would render the testatrix of unsound mind, was "sufficient mental capacity to understand the nature and legal effect of her will."

Said instruction nine informed the jury that if the testatrix "did not have sufficient mental capacity to understand all the provisions of said will standing alone, and each with respect to the other, and if the evidence so shows, then Jane Hawkins should be regarded as a person of unsound mind at the time of the execution of the will, and as not having sufficient mental capacity to execute said will, and if the jury so find the verdict should be for plaintiff." It was not necessary that the testatrix should have comprehended the provisions of her will in their legal form. Barricklow v. Stewart (1904), 163 Ind. 438, 440, 72 N.E. 128; Harrison v. Rowan (1820), 3 Wash. C. C. 580, 585, 11 F. Cas. 658, Fed. Cas. No. 6,141; Trish v. Newell (1871), 62 Ill. 196, 14 Am. Rep. 79, 84, 85; O'Brien v. Spalding (1897), 102 Ga. 490, 31 S.E. 100, 66 Am. St. 202, 212; Kischman v. Scott (1901), 166 Mo. 214, 228, 65 S.W. 1031; Couch v. Gentry (1892), 113 Mo. 248, 256, 20 S.W. 890; Young v. Ridenbaugh (1878), 67 Mo. 574; Havens v. Mason (1905), 78 Conn. 410, 62 A. 615, 3 L. R. A. (N. S.) 172; note to Slaughter v. Heath (1907), 27 L. R. A. (N. S.) 1, 20, 21.

It was said in the case of Harrison v. Rowan, supra, as to a testator's capacity, that "he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will, with an understanding of the nature of the business in which he is engaged--a recollection of the property he means to dispose of--of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient, if he has such a mind and memory as will enable him to understand the elements of which it is composed--the disposition of his property in its simple forms. It is the business of the testator to dictate the purposes of his mind; and of the scrivener to express them in legal form."

It is said in the case of Couch v. Gentry, supra, on page 256: "Again it is doubtless true that the testator should have a reasonable understanding as to how he desires his will to take effect, but to say he must understand the scope and bearing of the provisions of the will as prepared by his adviser, and this instruction is subject to such a construction, is another thing--a thing as to which legal advisers and eminent men are sometimes mistaken."

In the case of Kischman v. Scott, supra, the court said on page 228: "And while it is true that the testator should have reasonably understood as to how he desired his will to take effect, it was not necessary that he should have understood the scope and bearing of the provisions of the will as prepared by his legal adviser."

It is evident that said instructions eight and nine were erroneous, for the reason that they required too high a standard of mental capacity.

Instruction eleven, given upon the question of the mental capacity of the testatrix to make a will, informed the jury that it might "consider whether she had sufficient mental capacity to comprehend the provisions" of items...