Forbing v. Weber

• Decision Date: 22 January 1885
• Docket Number: 11,088
• Citation: 99 Ind. 588
• Parties: Forbing et al. v. Weber
• Court: Indiana Supreme Court

99 Ind. 588

Forbing et al. v. Weber

No. 11,088

Supreme Court of Indiana

January 22, 1885

From the Adams Circuit Court.

Judgment affirmed.

D Studabaker, C. M. France, -- Merryman and W. J. Vesey, for appellants.

B Harrison, W. H. H. Miller and J. B. Elam, for appellee.

OPINION

Elliott J.

The complaint of the appellee prays that a will alleged to have been executed by John Tomellier, deceased, and afterwards lost or destroyed, may be admitted to probate.

It is argued that the complaint is bad for the reason that it is not averred that the will was not destroyed for the purpose of revoking it, but, we think, facts are averred which authorize the conclusion of law that it was not revoked. In one place it is alleged that the will was destroyed by the testator while he was in a state of temporary insanity, and not of sound mind, and that when he recovered from the fit of temporary insanity, he declared that he had no intention of revoking the will. It is also averred that the testator caused the will to be recorded in the records of the county for the purpose of preserving it, and that he made no subsequent will, but died testate. These facts rebut the presumption that the will was burned for the purpose of working a revocation, and also show that there was no revocation by a subsequent will. As the testator knew that the public records of the county contained an accurate copy of the instrument, it is but reasonable to infer that when he regained his mental capacity he acted upon the presumption that it was not necessary to cause the will to be rewritten. Of course, the recording of the will added nothing to its effect, but, while this is true, it is also true that it preserved an accurate copy, and enabled the original to be reproduced without doubt or uncertainty.

To constitute a valid revocation of a will, two things must concur: 1. The intention to revoke; 2. The act manifesting the intention. Woodfill v. Patton, 76 Ind. 575; Runkle v. Gates, 11 Ind. 95; Woolery v. Woolery, 48 Ind. 523; Wright v. Wright, 5 Ind. 389; 1 Jarman Wills (5 Am. ed.) 284. A testator who destroys a will in a fit of temporary insanity does not revoke it, for the plain reason that in legal contemplation an insane man can neither form nor manifest an intention; the intention which the law regards is that of a reasoning being, not that of a person bereft of mental power. The authorities all agree that a revocation is not effectual unless executed in the manner required by law, and it is not possible for a man destitute of reason to execute a revocation in that manner, because he is incapable of forming the intention which the law declares is indispensably necessary to the existence of a valid revocation.

We do not deem it necessary to discuss the question as to the sufficiency of the third paragraph of the answer, for, assuming it to be good, no available error was committed in sustaining the demurrer, because the general denial entitled the appellants to introduce all the evidence that would have been competent under that paragraph.

It has been held in many cases that objections to the competency of evidence must be specifically stated to the trial court and embodied in the bill of exceptions. City of Delphi v. Lowery, 74 Ind. 520, and authorities cited. It has also been uniformily held that it is not sufficient to state in general terms that evidence is not competent, but that the particulars in which the evidence is alleged to be incompetent must be pointed out with a fair degree of certainty. Harvey v. Huston, 94 Ind. 527; Lake Erie, etc., R. W. Co. v. Parker, 94 Ind. 91; Fitzpatrick v. Papa, 89 Ind. 17; Cox v. Stout, 85 Ind. 422; McClellan v. Bond, 92 Ind. 424; Underwood v. Linton, 54 Ind. 468; Stanley v. Sutherland, 54 Ind. 339; Murray v. Phillips, 59 Ind. 56; Manning v. Gasharie, 27 Ind. 399. The reason which supports the rule, which the cases cited so firmly establish, applies with peculiar force to a case where, like this, the witness is only partially incompetent. If it were conceded that Weber was an incompetent witness as to matters which took place before the testator's death, he was still not altogether an incompetent witness, for he was competent as to matters which occurred after the death of the testator. It seems clear, therefore, that a general statement, made when the witness is offered in such a case as this, that he is not competent, is not sufficiently specific, and that the objection should be specifically made when questions calling for testimony as to matters which occurred prior to the ancestor's death are propounded. Tried by this rule, the objection made below is not such as will present any question for our decision.

But if we are wrong in the conclusion...