Hinshaw v. Hinshaw

• Decision Date: 05 June 1962
• Docket Number: No. 2,No. 19543,19543,2
• Citation: 182 N.E.2d 805,134 Ind.App. 22
• Parties: Robert Dougan HINSHAW, Orlando Eugene Hinshaw, Robert D. Hinshaw, Executor of the Last Will and Testament of Louise P. Hinshaw, deceased, Appellants, v. Charles Smith HINSHAW, Appellee
• Court: Indiana Appellate Court

Page 805

182 N.E.2d 805

134 Ind.App. 22

Robert Dougan HINSHAW, Orlando Eugene Hinshaw, Robert D Hinshaw, Executor of the Last Will and Testament of Louise P. Hinshaw, deceased, Appellants, v. Charles Smith HINSHAW, Appellee.

No. 19543.

Appellate Court of Indiana, Division No. 2.

June 5, 1962.

Rehearing Denied July 10, 1962.

Wayne O. Wimmer, Elwood, Russell E. Stewart, Stewart & Austin, Anderson, for appellant.

Clarence O. Davisson, Busby, Davisson, Cooper & Farr, Anderson, for appellee.

KELLEY, Chief Justice.

Appellee instituted this action against appellants to contest, set aside and declare invalid the Last Will and Testament of the deceased testatrix, Louise P. Hinshaw. The validity of the will was challenged in the complaint upon the grounds:

1. That the testatrix was of unsound mind and incapable of making a will at the time of its execution.

2. That said will was unduly executed.

3. That the execution of the will was obtained by 'undue influence' and the will was executed under 'duress'. (By whom the undue influence and duress was exerted was not stated).

4. That the execution of the will was obtained by fraud on the part of appellant, Robert Dougan Hinshaw. (Upon motion of appellants this charge was withdrawn from consideration of the jury).

5. That the will was executed through mistake. (Upon motion of appellants this charge was withdrawn from the jury).

Trial by jury resulted in a verdict for appellee and that the will was invalid and the probate thereof should be set aside. Consistent judgment followed.

The error assigned here is the overruling of appellants' motion for a new trial. Among others, said motion contained specifications that the verdict is not sustained by sufficient evidence, that the verdict is contrary to law, and that the court erred in overruling appellants' motions at the close of all the evidence for a directed verdict on the issues of duress, undue influence and undue execution. These specifications call for a consideration of the evidence favorable to the appellee.

The decisions of our Supreme Court and this court over the years have clearly and definitely declared the legal principles and standards to be adhered to in determining whether the evidence establishes mental incapacity to make a valid will and whether such will was executed not as the voluntary act of the testator but by reason of the undue influence of another. In this action, under the provisions of § 7-120, Burns' 1953 Replacement, the burden of proof of the grounds of invalidity of the will alleged in the complaint rested upon appellee.

Said principles and standards, with the authorities in support thereof, are stated in Noyer, Executor of Noyer, Deceased et al. v. Ecker et al. (1954), 125 Ind.App. 63, on page 64, 119 N.E.2d 902, on page 903, as follows:

'It is well settled that not all mental weakness or insanity is sufficient to set aside a duly executed will. Only where the testator does not have sufficient mental capacity at the time of making the will to know the extent and value of his property, the number and names of those who were the natural objects of his bounty, their deserts with reference to their conduct toward and treatment of him, will the law invalidate the will. Daugherty [et al.] v. Daugherty [et al.], 1945, 115 Ind.App. 253, 267, 57 N.E.2d 599; Keplinger v. Ward [et al.], 1946, 116 Ind.App. 517, 520, 64 N.E.2d 307, 65 N.E.2d 644; Wiley et al. v. Gordon [et al.], 1914, 181 Ind. 252, 104 N.E. 500; Rarick et al v. Ulmer [by Next Friend], 1895, 144 Ind. 25, 42 N.E. 1099.

'While undue influence is not susceptible to precise definition, it may be broadly defined as the unlawful imposition of the power and will of the perpetrator whereby the victim is forced to do an act which is not his...