Emry v. Beaver

• Decision Date: 15 November 1922
• Docket Number: 23,790
• Parties: Emry et al. v. Beaver et al
• Court: Indiana Supreme Court

137 N.E. 55

192 Ind. 471

Emry et al. v. Beaver et al

No. 23,790

Supreme Court of Indiana

November 15, 1922

From Hamilton Circuit Court; Ernest E. Cloe, Judge.

Action by Omer V. Beaver and others against James H. Emry and others. From a judgment for plaintiffs, the defendants appeal.

Reversed.

Samuel Ashby, Thomas E. Kane, Joseph A. Roberts and Roger S Roberts, for appellants.

Meade Vestal, Roscoe R. Foland, Gentry & Campbell, Christian & Waltz and Shirts & Fertig, for appellees.

OPINION

Townsend, J.

Appellees brought this action to set aside the will of one William H Beaver, because of unsoundness of mind and undue influence. They obtained a general verdict in their favor with judgment accordingly.

Instruction No. 14, requested by appellees and given by the court, told the jurors that they might consider other wills and codicils made by the testator as bearing on the subject of undue influence. This was error.

Declarations of the testator, not made at the time of the execution of the will in controversy, are admissible as tending to show the mental capacity of the testator, but are not admissible as evidence of undue influence. Robbins, Exr., v. Fugit (1920), 189 Ind. 165, 126 N.E. 321; Ditton v. Hart (1911), 175 Ind. 181, 189, 93 N.E. 961, and cases there cited. Counsel for the appellees insist that the above rule is incorrect, and that this court in Hayes v. West (1871), 37 Ind. 21, started with the wrong rule, and that the better reasoned authority is that previous wills and codicils may be considered on the subject of undue influence. We have, accordingly, re-examined the question, and are satisfied that the correct rule was laid down in Hayes v. West, supra, and that the authorities cited to sustain that rule in Ditton v. Hart, supra, are correct and contain the better reasoning. The declarations of the testator, including previous wills and codicils, are hearsay. Undue influence must be proven, and is capable of being proven by evidence which is not hearsay. The acts and declarations and previous wills and codicils of the testator are competent evidence to be considered on the question of soundness or unsoundness of mind, and constitute the exception to the hearsay rule because of necessity.

Some of appellees, as witnesses, were permitted, over objection by appellants, to testify to facts and circumstances occurring in the lifetime of the testator, which could have no bearing upon this case, except on the subject of undue influence. This was error, because such witnesses are made incompetent under our statute, as to the facts and circumstances bearing on this question. § 522 Burns 1914, § 499 R. S. 1881.

The will in question was executed on July 6, 1915. The codicil was executed November 11, 1915. Between those two dates two of appellees instituted an action, under § 3101 Burns 1914, Acts 1895 [192 Ind. 474] p. 205, to have testator declared of unsound mind and a guardian appointed. This was tried by the court and terminated in a judgment in testator's favor on November 8, 1915, declaring him of sound mind and capable of managing his estate. This judgment was set up in two paragraphs of special answer as a bar to the present action. The trial court sustained a demurrer to each paragraph.

Appellants claim that this was error. That is to say, they claim that the judgment of November 8 is conclusive as to the will and codicil, because the codicil three days later reaffirms the will of July 6. We think the court was right in sustaining the demurrer. This judgment left the testator where it found him, with the presumption of soundness of mind and capability in his favor, and in favor of those claiming through or under him. Because testator was found by a court to be competent to take care of himself and manage his own estate on November 8 1915, it does not follow conclusively that he was of sound mind so that he could make a valid will on July 6, 1915, or on November 11, 1915. Nor does it follow conclusively that he was capable of making a will on November 8, 1915. The investigation under the...