Johnson v. Banker

• Decision Date: 16 March 1923
• Docket Number: 23,740
• Citation: 138 N.E. 505,193 Ind. 16
• Parties: Johnson et al. v. Banker et al
• Court: Indiana Supreme Court

138 N.E. 505

193 Ind. 16

Johnson et al. v. Banker et al

No. 23,740

Supreme Court of Indiana

March 16, 1923

From LaPorte Circuit Court; James F. Gallaher, Judge.

Application for the probate of the will of Colista Caroline Phillips deceased, opposed by Colista V. Banker and others. From a decree denying probate, Phebe Ellen Johnson and others appeal. (Transferred from the Appellate Court under § 1392, cl. 7, Burns' Supp. 1921, Acts 1915 p. 149.)

Affirmed.

Hickey & Wolfe, for appellants.

Doran & Conboy and Sutherland & Smith, for appellees.

Ewbank J. Willoughby, J., absent.

OPINION

Ewbank, J.

Appellants offered for probate what purported to be the will of Colista Caroline Phillips, and appellees interposed objections for the reasons, as alleged, that the testatrix was of unsound mind, that the pretended will was not executed by her, that it was not signed by her nor by another for her at her request and with her knowledge, and also for certain other alleged reasons which the evidence wholly failed to prove. The jury returned a general verdict that the paper in question was not her will and should not be admitted to probate, and also returned answers to forty-four interrogatories, all of which were consistent with the general verdict. There was no interrogatory asking whether or not Mrs. Phillips was of unsound mind, but interrogatories were answered to the effect that she did not sign the will by making her mark on the day it was dated, and that the three persons whose names appear thereon as witnesses did not sign it as witnesses on that date, in the presence of Mrs. Phillips and of each other. Appellants filed a motion for a new trial for the alleged reasons that the verdict is not sustained by sufficient evidence and is contrary to law, and that each answer to each of twenty-three interrogatories is not sustained by sufficient evidence, besides certain other alleged reasons that have been waived by appellant's failure to discuss them. This motion was overruled, and appellants excepted, and have assigned that ruling as error.

That an answer to a designated interrogatory is not sustained by sufficient evidence is not one of the statutory causes for a new trial. § 585 Burns 1914, § 559 R. S. 1881; Sievers v. Peters Box and Lumber Co. (1898), 151 Ind. 642, 656, 50 N.E. 877, 52 N.E. 399; Federal Life Ins. Co. v. Maxam (1917), 70 Ind.App. 266, 289, 118 N.E. 839.

Many witnesses testified to facts tending to prove that Mrs. Phillips was not entirely normal. Sixteen nonexpert witnesses, after detailing to the jury the facts on which their respective opinions were based, each expressed the opinion that she was of unsound mind. A physician, called as an expert witness, answered a long hypothetical question purporting to enumerate facts of which there was evidence, by testifying that upon those facts, in his opinion, she was of unsound mind. There was much evidence to the contrary, including the testimony of the person who wrote and witnessed the will, that she came to his office, told him all about her family and her property, and just how she wanted to devise each item, and what she did and said in executing the will. But this court does not weigh evidence, and evidence of unsoundness of mind which, if it stood alone, would be sufficient to sustain the verdict, is sufficient on appeal as against any amount of evidence to the contrary. Lake Erie, etc., R. Co. v. Stick (1896), 143 Ind. 449, 455, 41 N.E. 365.

A witness testified that he wrote the will, that he signed the name of Mrs. Phillips to it by her direction, with the words "her mark," that she made her mark by way of executing the will, and that he then signed his name as a witness in her presence, at her request. But three...