Hamling v. Hildebrandt
| Decision Date | 14 October 1948 |
| Docket Number | 17688. |
| Citation | 81 N.E.2d 603,119 Ind.App. 22 |
| Parties | HAMLING v. HILDEBRANDT et al. |
| Court | Indiana Appellate Court |
Appeal from Fountain Circuit Court; Roy C. Fenters, Judge.
Action by Mary Hildebrandt and others against William Hamling, as executor of the last will of Catherine A. Heineman and individually as beneficiary under deceased's will, to contest the will and set aside the probate thereof. Judgment for contestants, and proponent appeals.
Affirmed.
Wallace & Wallace and Karl Overbeck, all of Veedersburg, for appellant.
Rex V. Keller and White & White, all of Covington, and Ringer & Ringer, of Williamsport, for appellees.
This is an action to contest the will of Catherine A. Heineman deceased, and set aside the probate thereof.
The complaint, which is in one paragraph alleges the will to be invalid because of (1) mental incapacity of the testatrix; (2) duress; (3) fraud. In accordance with the verdict of the jury the will was adjudged invalid and the probate thereof was set aside.
The defendants William Hamling (brother of the deceased and beneficiary under the will), and William Hamling as executor of the will, appeal and assign as error the overruling of their motion for new trial.
They assert the verdict is contrary to law because not sustained by sufficient evidence. See Coats v. Veedersburg State Bank, 1941, 219 Ind. 675, 38 N.E.2d 243. The proposition is vigorously and ably urged. But while we find no evidence to substantiate the allegations of fraud or duress, a careful consideration of the evidence bearing on the question of the mental capacity of the testatrix impels us to adopt the following language of our Supreme Court as found in Stalker v. Breeze, 1917, 186 Ind. 221, 114 N.E. 968 969:
'Without setting out the evidence herein, which is voluminous, it is sufficient to say, that, in our opinion, there was at least sufficient evidence introduced in the case to form an issue of fact as to testator's testamentary capacity, and that issue having been submitted to the jury, which found against the validity of the will, this court could not, if it so desired, invade the province of the jury and weigh the evidence.'
At the close of plaintiffs' case in chief the appellants filed a motion for a directed verdict on all issues, which was overruled; thereupon, they filed a motion for a directed verdict on the issue of duress, which was overruled; and thereupon, they filed a motion for a directed verdict on the issue of fraud, which was overruled. The first was properly overruled because the evidence on the question of mental capacity was sufficient to go to the jury. The second and third were properly overruled as being inappropriate. Under the circumstances the appellants should have taken suitable steps to have those issues withdrawn from the consideration of the jury. Huntington v. Hamilton, Ind.App.1947, 73 N.E.2d 352; Stevens v. Leonard, Ex'r, 1900, 154 Ind. 67, 56 N.E. 27, 77 Am.St.Rep. 446; Jarrett et al. v. Ellis, 1923, 193 Ind. 687, 141 N.E. 627; Long v. Neal et al., 1921, 191 Ind. 118, 132 N.E. 252; Loeser v. Simpson, 1942, 219 Ind. 572, 39 N.E.2d 945; Young v. Montgomery, 1903, 161 Ind. 68, 67 N.E. 684.
At the close of all the evidence the appellants filed separate motions for a directed verdict on the issues of fraud and duress. These motions were overruled. We think these motions were also inappropriate. If the appellants wished to test the sufficiency of the evidence on the issues of fraud or duress only, they should have taken appropriate steps to have such issues withdrawn from the consideration of the jury.
Although the court overruled all of appellants' motions for directed verdicts, it did of its own motion give its instruction 2A, which reads as follows:
An instruction in almost identical language was given in Stevens v. Leonard, Ex'r, supra, and it was there said the instruction was appropriate to withdraw from the consideration of the jury the element of undue influence and was properly given if there were no evidence thereof. We think that by the giving of this instruction the court effectively withdrew the other issues, leaving that of the mental capacity of the testatrix as a solid foundation for the verdict of the jury.
The appellants complain of the court's refusal of two instructions tendered by them which embraced the idea that on the issues of fraud and of duress the will was valid, and verdicts for the defendants must be returned on each of those issues. As we have said, those issues were removed from the consideration of the jury by the court's instruction 2A. The tendered instructions were, therefore, superfluous, and if given they would have been confusing in that the giving of them along with 2A would have told the jury to return a verdict on issues which had been withdrawn from its consideration.
The court refused appellants' tendered instruction No. 7 which would have told the jury to apply the test fixed by law for the determination of mental capacity to make a will, and not to apply some other test which some juror may have heard used for the purpose of determining unsoundness of mind in an action to commit an insane person, to appoint a guardian, etc. The instructions given defined testamentary capacity and the jury was told it was their duty to take the law as given the the court. The jury knew they were not trying a commitment or guardianship case. There was no evidence whatever concerning any such proceedings, nor any claim that any juror had ever been concerned with or heard of the tests applied in such cases. We think the instruction was properly refused. Cf. Loeser, Tr., et al. v. Simpson, et al., supra.
The testator left the appellant brother, two sisters, several nieces and nephews, and several grandnieces. Three grandnieces were identified by the will as the children of a deceased brother John, whereas, they were actually the children of John, Jr., the only living nephew not mentioned in the will. Two nieces, the children of a deceased brother George, were not mentioned. The others were left one dollar. Appellants tendered an instruction which would have told the jury that 'at a matter of law, a nephew or niece has no legal claim upon the bounty of his or her aunt,' and such aunt is not legally obligated to make testamentary provision for a nephew or niece. The instruction continues on the subject of a nephew or niece as the natural object of an aunt's bounty and announces the testator's right to disinherit her relatives. The first part of the tendered instruction is not clear. If it meant that a nephew or niece has no legal claim to a bounty or gift made to them by their aunt's will, it was of course erroneous. It also singled out and gave undue prominence to a particular class of relatives whose situation was similar to that of another concerned class. The subject was otherwise fairly covered, and we find no error in its refusal.
Other instructions tendered by the appellants and refused by the court were adequately covered by instructions given.
The court gave an instruction having to do with proof by circumstantial evidence. The appellants challenge its correctness as a statement of law and insist it was confusing to the jury. The instruction is clumsily worded, but in our opinion it is not so substantially inaccurate and confusing as to have influenced the result reached in this case.
At the request of the appellees the court gave their instruction No. 5 which reads as follows:
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