Kaiser v. Happel

• Decision Date: 09 October 1941
• Docket Number: 27624.
• Citation: 36 N.E.2d 784,219 Ind. 28
• Parties: KAISER et al. v. HAPPEL et al.
• Court: Indiana Supreme Court

36 N.E.2d 784

219 Ind. 28

KAISER et al. v. HAPPEL et al.

No. 27624.

Supreme Court of Indiana

October 9, 1941

Appeal from Circuit Court, Gibson County; A. Dale Edy Judge.

McDonald & McDonald, of Princeton, and W. C. Clippinger, of Evansville, for appellants.

H L. Taylor and Ben Zieg, both of Evansville, for appellees.

RICHMAN Judge.

Appellants filed objections to the probate of the will of Amelia Seip deceased, naming appellees as defendants in the action which charged unsoundness of mind, undue execution, undue influence, and duress. Trial before a jury resulted in a verdict and judgment for the appellees. Motion for new trial was overruled on which ruling error is assigned. One of the questions properly presented in the motion is alleged error in giving at the request of appellees the following instruction:

'I instruct you that under the law, every person is presumed to be of sound mind until the contrary is proved and in this case the law presumes that Amelia Seip was a person of sound mind at the time of the execution of the will in controversy, and the defendants are entitled to the benefit of this presumption until and unless such presumption is overcome by a preponderance of all the evidence. If after considering all the evidence in the case on the subject of her mental condition, you find such evidence is evenly balanced without a preponderance thereof being one way or the other, then your verdict should be for the plaintiffs because the burden of proof is on the defendants.'

In actions where the mental capacity of a testator to make a will is the issue the burden of proof depends upon the character of the action. Before probate one who seasonably objects to probate and follows up his objections by a formal complaint in resistance of probate, puts upon the proponent of the will the burden of proving the requisite mental capacity to give validity to the will. Johnson v. Banker, 1923, 193 Ind. 16, 19, 138 N.E. 505, 506. The jury may not assume the existence of the fact in issue. It must be proved by evidence. If the fact, that is, soundness of mind, is not proved by a preponderance of the evidence, then the proponent fails and probate is denied.

After probate the rule is different. The proceedings in probate constitute an ex parte judgment that the testator was of sound mind when the will was executed. This judgment may be set aside if thereafter, in an action to contest the will and the probate thereof, it be proved that the testator was of unsound mind when he executed the will. But the burden of proof, as in any case where a judgment is attacked, is upon him who challenges its validity. The fact in issue in such case is unsoundness of mind and the burden is upon him who asserts the fact, namely, the plaintiff in the action to contest. Pence v. Myers, 1913, 180 Ind. 282, 101 N.E. 716.

It is proper, of course, to instruct a jury as to the burden of proof and the last sentence of this instruction correctly applies the rule in this form of action. But the first sentence has no place in this or any other instruction.

The books are full of confusing dicta concerning presumptions. We hope we shall not add to the confusion by the brief discussion necessary to show the error of the first sentence of this instruction. It is a compound sentence. The first clause asserts generally that 'every person is presumed to be of sound mind until the contrary is proved' and specifically that such presumption applies to this testatrix. So much of the sentence perhaps would not have been harmful although it should not have been stated to the jury. The second clause of the sentence states that 'defendants are entitled to the benefit of this presumption until and unless such presumption is overcome by a preponderance of all the evidence.' This was both erroneous and harmful.

Following his discussion of 'Burden of Proof' in IX Wigmore on Evidence, 3rd Ed., the author, beginning with § 2490, takes up the related subject of 'Presumptions.' He says, § 2491: 'The distinction between presumptions 'of law' and presumptions 'of fact' is in truth the difference between things that are in reality presumptions (in the sense explained above) and things that are not presumptions at all.' But he has already stated in § 2490 that what he now calls 'in reality presumptions' are better called 'rules of law.' So if his nomenclature be adopted there is no such thing as a presumption either of law or of fact.

Treating the statement in the first clause of the sentence as 'in reality' a presumption or a rule of law, it is not a rule for the jury but for the judge to guide him in determination of the order of proof, the so-called duty of going forward with the evidence. The presumption has no place in any instruction because all matters in connection with the order of proof, including the failure to discharge the duty of going forward, have been decided by the judge before the trial has reached the stage when the jury is to be instructed. This was stated in Kilgore v. Gannon, 1916, 185 Ind. 682, 683, 114 N.E. 446, 447, L.R.A.1917E, 530 as follows:

'The ordinary function of most, socalled presumptions of law, as they relate to the law of evidence, is to cast on the party against whom the presumption works the duty of going forward with evidence, and when that duty is performed, the presumption is functus officio, and has no proper place in...