Harbison v. Boyd

• Decision Date: 28 November 1911
• Docket Number: 21,812
• Citation: Harbison v. Boyd, 177 Ind. 267, 96 N.E. 587 (Ind. 1911)
• Parties: Harbison v. Boyd et al
• Court: Indiana Supreme Court

96 N.E. 587

177 Ind. 267

Harbison v. Boyd et al

No. 21,812

Supreme Court of Indiana

November 28, 1911

Rehearing Denied March 15, 1912.

From Knox Circuit Court; George W. Buff, Special Judge.

Action by Mary E. Harbison objecting to the probate of a will offered by John T. Boyd and others. From a judgment for proponents, the objector appeals.

Affirmed.

Samuel W. Williams, Thomas Duncan and A. L. Harbison, for appellant.

Clarence B. Kessinger, B. M. Willoughby and James M. House, for appellee.

OPINION

Cox, J.

Appellees who are surviving sons and widow of LeRoy Boyd, deceased, offered for probate in the lower court the instrument involved in this case as his last will. Appellant, a daughter of decedent, filed objections and contested the admission of the will to probate, on the grounds that at the time of the alleged execution of the will the testator was of unsound mind, that he was unduly influenced to execute the same, that the will was unduly executed, and that the same was not the last will of decedent.

A jury tried the issues formed by general denial, and returned a verdict sustaining the will, and from a judgment admitting the will to probate this appeal is prosecuted upon alleged error on the part of the trial court in overruling appellant's motion for a new trial.

The criticism made by counsel for appellees of appellant's brief as not being a proper compliance with the rules of this court, is, in a measure, entirely just, and we find the complaint made in the brief of the inconsistency between certain of the instructions given by the court, to be but vaguely made in the propositions or points stated in the brief. It seems apparent, however, that counsel for appellant have made a good-faith effort to present the questions hereinafter considered, all others being waived by a failure to present them in appellant's brief. See Ditton v. Hart (1911), 175 Ind. 181, 93 N.E. 961, and cases cited on page 963.

In instruction two the court had told the jury that the material questions raised by the pleadings were: "Did the alleged testator, LeRoy Boyd, leave a will? If he left a paper purporting to be his will, Was he of sound mind when it was executed? If he left an alleged will, Was he unduly influenced in the making of it? Was the alleged will duly executed?" In instruction three the jury was told that the burden rested upon the proponents of the will, appellees here, of proving by a preponderance of the evidence that LeRoy Boyd left the will, of which probate was sought, as his last will, that he was of sound mind when he executed it, that he was not unduly influenced in the making of the will, and that the same was duly executed. The jury was instructed at length on the various elements and issues of the case, and counsel for appellant have severed two of these instructions, numbered ten and thirteen, from their connection with, and relation to, the instructions as a whole, and complain that they are in conflict with instructions two and three, in that they, in effect, take from the consideration of the jury all the questions involved in the issues, except those of the testamentary capacity of the testator and the procuration of the execution of the will by undue influence. These instructions are as follows: "(10) The real question to be determined by the jury, under the instructions of the court, is: 'What was the condition of the mind of LeRoy Boyd, and was he under any restraint or unduly influenced by any person or persons on the 15th day of September, 1904, the day on which the will sought to be probated was executed?' Evidence has been introduced to show the state of mind and the surroundings of the testator, both before and after the execution of said will, but they are only to be considered by you, in the light of aiding you in determining what was the state of mind of the testator, and as to whether any undue influence was exercised over him, to secure the execution of said will, or the execution thereof in a certain way."

"(13) In this case, therefore, if you find that LeRoy Boyd at the time he executed the will in controversy was possessed of monomania, and that his monomania related to a subject foreign from the disposition of his property and foreign from those who were the natural objects of his care and bounty, and foreign from the subject of his will and from the beneficiaries thereunder, and at the time of the execution of the will he possessed mind enough to comprehend the business in which he was engaged, to know the extent and value of property, the number and names of the persons who were the natural objects of his bounty, their needs and deserts with regard to their treatment toward him, and to rationally apprehend his relation to his children and grandchildren and the manner he wished to distribute his property among them or withhold it from them and that he had a sufficiently strong and active mind during the preparation and execution of his will, and that his will was in noway affected by his mania, if you find he had any such mania, then you should find him of sound mind and return your verdict for the proponents."

No criticism is made of the form or substance of these instructions, or that they failed to state the law correctly on the questions they were designed to cover, but it is urged that they were inconsistent with number two and three and were calculated to mislead the jury as to what questions were submitted for its determination. It is argued that by instruction ten the jury was given to understand that it was only to determine the issues of the testamentary capacity of the testator and undue influence, and that by instruction thirteen even the latter question was taken away from it. In other instructions the court fully charged the jury on all the issues raised by the pleadings, and, taking them all together, the jury could not well have understood that instruction ten left it only the two questions of the testator's mental competency and undue influence to determine, or that instruction thirteen did other than to tell it how it should find on the issue of testamentary capacity upon the hypothesis stated in the instruction. It might under instruction thirteen, have found for appellees on the issue of mental competency, and yet if the evidence warranted it, it must have understood that it could find for appellant, under other instructions given by the court, on one or all of the other issues. The closing words of instruction thirteen are not to be approved, but considering all the instructions together, the jury could not have been misled. Bundy v. McKnight (1874), 48 Ind. 502; Davis v. Hardy (1881), 76 Ind. 272, 276; Conway v. Vizzard (1890), 122 Ind. 266, 269, 23 N.E. 771; Whiteman v. Whiteman (1899), 152 Ind. 263, 53 N.E. 225.

But conceding that the court committed error in giving these instructions, as appellant claims, and that they had the full effect that it is argued they must have had--number ten of withdrawing from the jury for determination the questions of whether a purported will was left by the decedent, and whether it was formally executed by him, and number thirteen of leaving the jury to determine only the question of testamentary capacity it still does not follow that this should work a reversal of the cause. The evidence conclusively shows that decedent left a purported will, written by his own hand, and duly signed by him as his will in the presence of two competent witnesses, who also signed it as such in his presence and in the presence of each other. The record contains no evidence in the remotest degree contrary to this, and no claim is made by appellant that a formally executed will was not left by Boyd. The proponents introduced the will in evidence. It was written by Boyd himself, and no indication of undue influence inheres in its provisions. He procured witnesses to sign it who were in nowise interested, but whom he had long known and been associated with. He told one of them where the will would be found in case of his death, so that it might be placed in the proper hands. It appears from the evidence that no one other than these witnesses knew that he had executed a will. Neither of the appellees had such knowledge, and neither had ever said anything to him about him making a will, nor had he to them. It affirmatively appears from the evidence that at the time the will was executed, no influence entered into the act other than his own strong will. Appellant offered no evidence to controvert all this, and none appears in the record. Under these circumstances, therefore, the only controverted issue was that of the mental competency of the testator to make the will, and it could not have harmed appellant for the court so to instruct the jury. Whiteman v. Whiteman, supra; Blough v. Parry (1896), 144 Ind. 463, 40 N.E. 70, 43 N.E. 560; Stevens v. Leonard (1890), 154 Ind. 67, 71, 56 N.E. 27, 77 Am. St. 446; Barricklow v. Stewart (1904), 163 Ind. 438, 443, 72 N.E. 128.

The rule is that where there is no dispute as to the facts, and no controversy as to the inferences that can be legitimately drawn from them, the question is one of law, and the jury may be directed to return a verdict for one party or the other on any issue, according as either is entitled to recover under the law applicable thereto. Sering v. Doan (1864), 23 Ind. 455; Weis v. City of Madison (1881), 75 Ind. 241, 39 Am. Rep. 135; Ohio, etc., R. Co. v. Dunn (1894), 138 Ind. 18, 36 N.E. 702, 37 N.E. 546; Dumington v. Syfers (1901), 157 Ind. 458, 62 N.E. 29; Sunnyside Coal, etc., Co. v. Reitz (1896), 14 Ind.App. 478, 39 N.E. 541, 43 N.E. 46; Burns v. Smith (1902), 29 Ind.App. 181, 64 N.E. 94, 94 Am. St. 268; 2 Elliott, Gen. Prac. § 887 and cases cited.

Instruction nine, of...