Kaiser v. Happel

Citation36 N.E.2d 784,219 Ind. 28
Decision Date09 October 1941
Docket NumberNo. 27624.,27624.
PartiesKAISER et al. v. HAPPEL et al.
CourtSupreme Court of Indiana

219 Ind. 28
36 N.E.2d 784

KAISER et al.
v.
HAPPEL et al.

No. 27624.

Supreme Court of Indiana.

Oct. 9, 1941.


Action by Annie Kaiser and others against George Happel and others to resist probate of the purported will of Amelia Seip, deceased. From an adverse judgment, plaintiffs appeal, and the appeal was transferred from the Appellate Court under Burns' Ann.St.1933, § 4-215.

Judgment reversed, with instructions.

Superseding opinion in 33 N.E.2d 825.

[36 N.E.2d 784]

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

[36 N.E.2d 785]


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...

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