Haas v. Haas

• Decision Date: 12 January 1951
• Docket Number: No. 17979,17979
• Citation: 96 N.E.2d 116,121 Ind.App. 335
• Parties: HAAS et al. v. HAAS.
• Court: Indiana Appellate Court

Page 116

96 N.E.2d 116

121 Ind.App. 335

HAAS et al. v. HAAS.

No. 17979.

Appellate Court of Indiana, in Banc.

Jan. 12, 1951.

William R. Johnson, Terre Haute, for Vinton Haas & Jeffries Co. Exrs., brazil.

Harvey Fisher, Brazil, for legatees.

Craig & Craig, Brazil, for Haas, etc.

Kenneth C. Miller, Eugene Weaver, Brazil, R. Stanley Lawton, Indianapolis, Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellee.

CRUMPACKER, Judge.

The appellee Mabel Haas, as the widow and sole heir at law of the late George Haas, brought this action to set aside his last will and testament on the grounds that it was executed through undue influence and that he lacked mental capacity to make it. The appellants are the brothers, sisters and a nephew of the said George Haas to whom he bequeathed substantial sums of money. They answered under Rule 1-3 and a second paragraph of answer wherein it is alleged that Mabel Haas, as the testator's widow, failed to elect to take under the law within the time prescribed by statute and thereby recognized his will as valid and is now estopped from contesting it. A demurrer to this paragraph of answer was sustained and the case went to trial by jury on the issues of undue influence and the testator's mental capacity to make a will. The verdict was for the appellee and, over the appellants' motion for a new trial, it was adjudged that said will is 'invalid and of no force and effect.'

Under the heading 'Propositions, Points and Authorities' the appellants' brief sets out 20 propositions and 47 point made thereunder but in the section of said brief devoted to argument the appellants discuss the following alleged errors only: (1) sustaining the demurrer to the second paragraph of their answer; (2) the verdict on the issue of unsoundness of mind is not sustained by sufficient evidence; (3) no evidence whatever to sustain the verdict on the issue of undue influence and the same should have been withdrawn from the jury; (4) in giving Instructions Nos. 3, 9, 13, 14, 15, 19, 20, 21, 22 and 35; (5) the refusal to give appellants' tendered Instruction No. 26; and (6) in permitting two doctors of medicine to answer a certain hypothetical question put to each in turn. All other questions presented in said brief we treat as waived. Gluff v. Rouls, Ind.Sup., 1950, 91 N.E.2d 176. We will discuss the questions presented in the order above set out.

Did the court err in sustaining the demurrer to the appellants' second paragraph of answer which counts on the appellee's failure to renounce the will and elect to take under the law? The appellants state their position thus: 'The failure of a widow to elect to retain the rights in her husband's estate given her by the law, in the manner and within the time fixed by statute, is an election to accept the provisions of the will and a rejection of the provisions made for her by law, and having elected to accept the provisions of the will she cannot at the same time assail its validity.' The pertinent statute reads as follows: 'Whenever any personal or real property be bequeathed to any wife, or a pecuniary or other provision be made for her in the will of her late husband, such wife shall take under such will of her late husband, and she shall receive nothing from her husband's estate by reason of any law of descent of the state of Indiana, unless otherwise expressly provided in said will, unless she shall make her election to retain the rights in her husband's estate given to her under the laws of the state of Indiana, which election shall be made in the manner hereinafter provided.' Burns' Stat. § 6-2332. Such election shall be made by verified writing in six months after said will has been admitted to probate in this state. Burns' Stat. § 6-2334.

These statutes have been construed to mean that in all cases where there is a will, the widow is conclusively bound by it unless she renounces its provisions and elects to take under the law in the manner pointed out in the statute. Fosher v. Guilliams, Executor, 1889, 120 Ind. 172, 22 N.E. 118; Collins v. Collins, 1891, 126 Ind. 559, 25 N.E. 704, 28 N.E. 190. To put it another way, on the death of a husband who made testamentary provisions for his wife, the failure of the surviving widow to make her election to take under the law instead of the will within six months after the probate thereof raises a conclusive presumption that she has accepted the provisions made for her in the will. Easterday v. Easterday, 1938, 105 Ind.App. 80, 10 N.E. 2d 764. The purpose and effect of § 6-2332, supra, is to make it impossible for a married man, by testamentary disposition of his property, to deprive his widow of a full one-third thereof. It has no application in cases of intestacy and therefore the choice a widow has is between the one-third, of which the law says she cannot be deprived, and what she gets under the terms of a valid will. In other words the election statute is predicated upon the existence of a valid will. If a testator makes a will which is of no force and effect the mere failure of his widow to elect to take under the law cannot be considered as raising a presumption of any kind.

There are circumstances, however, which may estop a widow from contesting her late husband's will. An affirmative election to take under it is binding upon her in the absence of a showing that she was of unsound mind, under legal disability, or that the execution of the election instrument was procured by fraud or other unlawful means. Hammond v. Toyne, 1914, 181 Ind. 584, 105 N.E. 42. Again if she accepts and enjoys the benefits of property given to her under the terms of her husband's will with full knowledge of his mental condition and the manner in which such will was executed and remains in continuous possession thereafter, she will be estopped from assailing the validity of the will on the grounds that the testator was of unsound mind or that the will was unduly executed. Keys v. Wright, 1901, 156 Ind. 521, 60 N.E. 309; Starkey v. Starkey, 1906, 166 Ind. 140, 76 N.E. 876. The appellee's second paragraph of answer alleges neither an affirmative election to take under the will nor an acceptance of anything under its provisions. In our opinion the demurrer was properly sustained.

Is there sufficient evidence in the record to sustain the verdict that the testator lacked mental capacity to make a will? A detailed discussion of the evidence bearing on this question would unduly extend this opinion. We think it sufficient to say that the record is replete with instances of conduct on the part of the decedent which permit the jury to infer that he was of unsound mind, to wit, indecent exposure, incoherence at times, threats of suicide, repetition in conversation, seeing people who weren't there, vacant staring, forgetfulness, confusion, failure to know friends and the use of narcotics on the very day he made his will. Twenty-three lay witnesses testified that in their opinion, based on what they saw him do and heard him say, all as related to the jury, he was a person of unsound mind when he made his will. There is also the opinion of two doctors of medicine, based on a hypothetical question, reciting the facts in evidence, to the same effect. In our opinion there can be no serious contention that the evidence in this respect is insufficient to sustain the verdict.

Is there any evidence of probative value to sustain the verdict on the issue of undue influence? It is true there is no direct and positive evidence of undue influence in this case. No witness saw or heard any one exercise any control over the will of the testator through force, threats, cajolery, flattery or other methods. Such evidence, however, is not necessary. Undue influence may be proven by circumstantial evidence and the only positive and direct proof required is of facts and circumstances from which undue influence may reasonably be inferred. Davis v. Babb, 1921, 190 Ind. 173, 125 N.E. 403; Workman v. Workman, 1943, 113 Ind.App. 245, 46 N.E.2d 718. We think the evidence is such that the jury was warranted in finding that the testator, by reason of his mental and physical condition, was susceptible of influence. His will was executed at about 11 o'clock in the morning. Previously thereto narcotics had been administered at midnight, early in the morning and again at 9 o'clock. This was necessary to ease pain that was so severe that he could not lie quietly in bed. At such time he was a very sick man and mentally so weak that at times he did not recognize his friends of many years. That there was opportunity for the exercise of undue influence also seems to be established. Since the decedent's confinement in the hospital the appellee had been his almost constant...