Kennedy v. Kennedy

• Decision Date: 04 October 1922
• Docket Number: No. 23892.,23892.
• Citation: 136 N.E. 557,192 Ind. 353
• Parties: KENNEDY et al. v. KENNEDY et al.
• Court: Indiana Supreme Court

192 Ind. 353

136 N.E. 557

KENNEDY et al.

v.KENNEDY et al.

No. 23892.

Supreme Court of Indiana.

Oct. 4, 1922.

Appeal from Circuit Court, Newton County; Geo. A. Williams, Judge.

Suit by Samuel M. Kennedy and others against Frieda Kennedy and others. From a judgment for plaintiffs and an order denying a new trial, defendants appeal. Judgment reversed, with directions to sustain the motion for new trial.

Wm. Darroch and Hume L. Sammons, both of Kentland, and Emory B. Sellers, of Monticello, for appellants.

EWBANK, J.

Appellees filed a complaint to contest the will of Sarah A. Kennedy, on the alleged grounds that the testatrix was of unsound mind, that the pretended will was unduly executed, and that its execution was procured by undue influence and by fraud. Each of the appellants answered by a denial. The jury returned a verdict, which recited that they found for the plaintiffs, and that the execution of said instrument, probated as the will of Sarah A. Kennedy, was procured by the undue influence of Frieda Kennedy and Nellie Kennedy Chizum, two of the defendants (appellants), and was not her will. A motion for a new trial was overruled, and appellants excepted, and from a judgment declaring the will invalid and setting aside the probate thereof, appellants perfected a term appeal. Overruling the motion for a new trial is the only error assigned.

The uncontradicted evidence showed that Nellie Kennedy Chizum and two of her codefendants and all but one of the plaintiffs, (the other being a grandchild and heir) were children and heirs of the testatrix, and that all of the plaintiffs and defendants were beneficiaries under the will. It also showed that John Hunter was and for more than 20 years had been the husband of Mrs. Grace Hunter, one of plaintiffs.

Appellees took the written examination of Nellie Kennedy Chizum before the trial. The questions and answers in this examination, so far as they had any bearing on the matters in issue, related to facts which occurred in the lifetime of the testatrix, having some tendency to show that Mrs. Chizum lived with her mother, the testatrix, and either influenced some of her mother's acts at and before the time the will was made, or had an opportunity to do so, at the least. This examination, 23 typewritten pages in length, was read in evidence, over an objection and exception by appellants. And John Hunter, the husband of the appellee, Grace Hunter, was permitted to testify, over an objection and exception by appellants, that at a time and place named, about two years before the will was executed, Mrs. Chizum, one of the defendants (appellants), had said that she would get ahead of the boys; that she would have her mother make a will so that they would get none of the property; Mrs. Chizum having stated in her examination before the trial that she did not remember making such a statement to him at the time and place referred to.

Mrs. Chizum and Mrs. Hunter, being heirs, devisees, and parties to the suit, were not competent to testify as witnesses upon the issue of undue influence as to any matters which occurred prior to the death of the testratrix. Burns' 1914, § 522; McDonald v. McDonald, 142 Ind. 55, 87, 41 N. E. 336;Wiley v. Gordon, 181 Ind. 252, 259, 104 N. E. 500;Long v. Neal (Ind. Sup.) 132 N. E. 252;Mitchell v. Walton (Ind. Sup.) 133 N. E. 496:Hiatt v. McColley, 171 Ind. 91, 94, 85 N. E. 772. And John Hunter, being the husband of such a party, was also incompetent. Burns' 1914, § 525; Terry v. Davenport, 185 Ind. 561, 577, 112 N E. 998;Belledin v. Gooley, 157 Ind. 49, 51, 60 N. E. 706.

And even if he were competent as a witness, evidence of statements and declarations made by one of several devisees, defending an action to set aside the will under which each claimed separately, that were not part of the res gestæ, nor made in controlling the acts of the testatrix, nor assented to by her codefendants, but which were made in the absence of such codefendants and of the testratrix, was not admissible to prove the will invalid. Hayes v. Burkam, 67 Ind. 359, 363;Ryman v. Crawford, 86 Ind. 262, 267;Shorb v. Brubaker, 94 Ind. 165, 168;Roller v. Kling, 150 Ind. 159, 166, 49 N. E. 948;Sanger v. Bacon, 180 Ind. 322, 327, 329, 101 N. E. 1001;Indiana & C. T. Co. v. Wiles, 174 Ind. 236, 239, 240, 91 N. E. 161, 729;Joyal v. Pilotte, 293 Ill. 377, 380, 127 N. E. 741;Old Colony T. Co. v. Di Cola, 233 Mass. 119, 123, 123 N. E. 454, 463;Estate of Lavinburg, 161 Cal. 536, 546, 119 Pac. 915;McAllister v. Rowland, 124 Minn. 27, 144 N. W. 412, Ann. Cas. 1915B, 1006;In re Knutson's Estate, 144 Minn. 111, 174 N. W. 617, 619;James v. Fairall, 154 Iowa, 253, 134 N. E. 608, 38 L. R. A. (N. S.) 731;McDonald v. McLendon, 173 N. C. 172, 91 S. E. 1017, Ann. Cas. 1918A, 1063; 1 Underhill on Wills, § 163; 2 Wigmore on Evidence, § 1081, p. 1288; 16 Cyc. 979, 980.

No question is involved in this case of proving what was said by a single defendant or sole beneficiary, or what a party said in the presence of coparties who assented thereto, or what she said in the presence of the testatrix, under such circumstances as to constitute verbal acts by which an influence over the testratrix was manifested, or of statements and declarations constituting part of the res gestæ, or of statements and declarations by one of several parties who had such a joint interest or such a relation to each other as would make one competent to speak and act for all. In the case at bar Mrs. Chizum was one of several beneficiaries under the will, two of whom were her codefendants, with whom she was not shown to have any...