Emhardt v. Collett
| Decision Date | 12 May 1921 |
| Docket Number | No. 23523.,23523. |
| Citation | 191 Ind. 215,131 N.E. 48 |
| Parties | EMHARDT v. COLLETT et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Probate Court, Marion County; Mahlon E. Bash, Judge.
Action by Margaret Collett and others against Adolph G. Emhardt, administrator, etc., of the estate of Edward A. Adams, deceased, and another. From judgment for plaintiffs, defendant administrator appeals. Reversed, with directions.
Philip Zoercher and Norman E. Patrick, both of Indianapolis, for appellant.
Clarke & Clarke, of Indianapolis, for appellees.
The appellee Margaret Collett brought this action against appellant, as administrator with the will annexed of the estate of Edward A. Adams, deceased, and the appellee Oscar G. Hermann, sole beneficiary under said will, which was dated October 6, 1916, and was admitted to probate December 26, 1916. By her complaint she sought to contest and set aside the said will, and to revoke the order probating it, on the alleged grounds of the unsoundness of mind of the decedent, undue influence, and the undue execution of the instrument. The appellee Collett did not claim to be an heir at law of the decedent, but alleged that she was the sole beneficiary under a prior will. The complaint alleged:
The sufficiency of the complaint was not challenged, but the appellant and appellee Hermann filed an answer of general denial, and the issue thus formed was submitted to a jury for trial. The evidence showed, among other things, that the will dated October 6, 1916, was admitted to probate before this action was commenced. An instrument purporting to be signed by “Edward Adams,” on January 27, 1910, devising all of his estate to Margaret A. Collett, and bearing an indorsement that:
-was read in evidence, under a stipulation that the instrument (including such indorsement) “was written and signed in the office of Clarke and Clarke in the presence of Margery Conway who is the stenographer and her sister Ada B. Kerr.” It appears that Clarke and Clarke were and are the attorneys for appellee Collett in this action.
[1] The averment that the decedent executed the alleged will under which appellee claims, amounted to an allegation that all acts were done which are required to constitute execution, including the signing by the testator at a time when he possessed testamentary capacity and the attestation in his presence by two competent witnesses (Burns' 1914, § 3132).
Neither Margery Conway nor Ada B. Kerr testified. Nobody testified to having seen the decedent sign this will, nor that what purported to be his signature was genuine, nor that Margery Conway and Ada B. Kerr, nor either of them, signed as a witness at the request of the testator, or in his presence; nor that the testator was a person of sound mind, and was not unduly influenced in the execution of said will; nor to any facts which occurred at the time it was signed, or on or about that date, tending to show his mental condition at that time, or that he was or was not unduly influenced at that time, or what was done in the way of executing the said will, except only as shown by the stipulation, and the recitals of the instrument, as above set out. Appellant duly tendered and the court refused to give an instruction numbered 13, to which refusal appellant excepted. Said instruction (in part) was as follows:
“Where the interest of the party suing to contest the validity of the will of a testator is founded solely upon the fact that such party is a legatee or a devisee under a prior alleged will of such testator, and there is no evidence to show that such party has any other interest, then it is incumbent upon such party to prove that such former will was executed by the testator with all the formalities necessary to make it a valid will, so that it would be operative as the last will and testament of the testator in the event the contested will is set aside; for unless such former will was executed with all the formalities requisite to the execution of a valid will, one having no interest other than that of a legatee or devisee thereunder would, in fact and in law, have no interest that would warrant a verdict in his favor.”
But the court gave of its own motion, instruction No. 4, which was the only instruction given that purported to state the facts of which the plaintiff had the burden of proof in order to overthrow the second will, to which instruction appellant excepted. That instruction reads as follows:
“Upon the issues thus joined in said cause, the burden of proof rests upon the plaintiff to prove by a preponderance of all of the evidence given in the cause that at the time of execution of said pretended will on October 6, 1916, said Edward Adams was of unsound mind and incapable of making a will; or that said pretended will, bearing date of October 6, 1916, was unduly executed; or that said pretended will bearing date of October 6, 1916, was never executed by said Edward Adams, and the signature purporting to be his signature was not made, or signed by him, or by any other person in his presence, or at his request, or with his knowledge and consent; or that the execution of said pretended will, bearing date of October 6, 1916, was procured by undue influence, exercised upon the mind of said decedent by defendant Oscar G. Hermann.”
No instruction was given as to the burden of proof of the other allegations of the complaint.
The court also gave other instructions, on the subjects of insane delusions, and of undue influence, hereafter referred to, and appellant duly reserved an exception to each of them.
The jury returned a verdict in favor of the appellee Collett that the instrument probated as the last will of said decedent is invalid, and that it and the probate thereof should be set aside, and answered an interrogatory by stating that on the day it was executed the decedent was of unsound mind. A motion for a new trial on the alleged grounds that the verdict is not sustained by sufficient evidenceand is contrary to law, and that the court erred in giving and refusing instructions as above stated, was overruled, and appellant excepted. From a judgment declaring that the second will was invalid, and that the probate thereof be set aside and revoked, and against the appellant and appellee Hermann for costs, the appellant perfected a...
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