Kilgore v. Gannon

Decision Date13 December 1916
Docket Number22,710
Citation114 N.E. 446,185 Ind. 682
PartiesKilgore et al. v. Gannon et al
CourtIndiana Supreme Court

From Vermillion Circuit Court; Barton S. Aikman, Judge.

Action by James T. Kilgore and others against Clara Gannon and others. From a judgment for defendants, the plaintiffs appeal.


A. G Leonard, H. H. Conley and W. B. Conley, for appellants.

E. E Neel, H. B. Aikman and Charles N. Fultz, for appellees.


Erwin, J.

This was an action to contest a will. The complaint is in one paragraph and in the usual form. The error relied on for reversal is the overruling of the motion for a new trial, and arises upon exceptions to the giving of certain instructions.

The evidence is not in the record, hence if the instructions were proper under any evidence properly admitted under the issues in the case, no reversal is authorized, but on the other hand, if the instructions given are wrong under any state of facts that could be proven under the issues in the case and direct the minds of the jury to an improper basis on which to predicate a verdict, the cause will be reversed, though the evidence is not in the record.

The first instruction complained of is No. 10, and reads as follows: "Gentlemen of the jury, if you find by a preponderance of the evidence in this case that the will in question has been admitted to probate, then I instruct you that such fact is prima facie evidence that the deceased Hugh M. Kilgore was a person of sound mind at the time the will in question was executed, and that said will was duly and properly executed."

The ordinary function of most so-called 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 the instructions to a jury. Thayer, Prelim. Treatise on Ev. 339, 346; Chamberlayne, Mod. Law of Ev. §§ 1021, 1085; Breadheft v. Cleveland (1915), 184 Ind. 130, 110 N.E. 662. Elliott in his work on Evidence says: "A presumption operates to relieve the party in whose favor it operates from going forward in argument or evidence, and serves the purpose of a prima facie case until the other party has gone forward with his evidence, but, in itself, it is not evidence, and involves no rule as to the weight of evidence necessary to meet it." Elliott, Evidence § 3. "The weight of authority is against regarding a presumption as evidence." Jones, Com. on Ev. § 10.

In Bates v. Pricket (1854), 5 Ind. 22, 61 Am. Dec. 73, this court said: "A presumption, like a fact proved, remains available to the party in whose favor it arises, until overcome by opposing evidence." That statement has been followed by this court in Adams v. State (1882), 87 Ind. 573, 575; Cleveland, etc., R. Co. v. Newell (1885), 104 Ind. 264, 273, 3 N.E. 836, 54 Am. Rep. 312; Louisville, etc., R. Co. v. Thompson (1886), 107 Ind. 442, 446, 8 N.E. 18, 9 N.E. 357, 57 Am. Rep. 120; Harris v. Ross (1887), 112 Ind. 314, 13 N.E. 873; Muncie Nat. Bank v. Brown (1887), 112 Ind. 474, 478, 14 N.E. 358; Pedigo v. Grimes (1888), 113 Ind. 148, 151, 13 N.E. 700; Montgomery v. Wasem (1888), 116 Ind. 343, 355, 15 N.E. 795, 19 N.E. 184; Old Nat. Bank, etc. v. Findley (1892), 131 Ind. 225, 228, 31 N.E. 62; Hilgenberg v. Northup (1893), 134 Ind. 92, 94, 33 N.E. 786; Welty v. State (1914), 180 Ind. 411, 422, 100 N.E. 73. In the case of Welty v. State, supra, this court said: "Our conclusion is, that whether it be a presumption of malice, or of innocence, it is an administrative assumption of a prima facie character, and that each yields before evidence showing the facts." In Steinkuehler v. Wempner (1907), 169 Ind. 154, 161, 81 N.E. 482, 15 L. R. A. (N. S.) 673, this court said: "The material point determined is that the testamentary capacity of the testator must be established by the proponents, and is adjudged by the order admitting the will to probate. In the absence of objections, the general presumption of law in favor of sanity would ordinarily supply the requisite proof, and in case of a contest would suffice to make a prima facie case in favor of the proponents. 'A presumption, like a fact proved, remains available to the party in whose favor it arises, until overcome by opposing evidence.'" Bates v. Pricket, supra. In United States v. Ross (1875), 92 U.S. 281, 23 L.Ed. 707, where the claimant relied on the presumption that a public officer does his duty, the court, after referring to the statement made by Best, in his Treatise on Evidence, to the effect that while some of the incidents of official action may be presumed, in the absence of evidence to the contrary, said: "Nowhere is the presumption held to be a substitute for proof of an independent and material fact." Wigmore in his work on Evidence, § 2491 states: "If the opponent does offer evidence to the contrary (sufficient to satisfy the judge's requirements of some evidence) the presumption disappears as a rule of law, and the case is in the jury's hands free from any rule. It is therefore a fallacy to attribute (as do some judges) an artificial probative force to a presumption, increasing for the jury the weight of the facts even when the opponent has come forward with some evidence to the contrary." In 9 Encyclopedia of Evidence 885, we find the following: "Since the function of a presumption logically considered is merely to impose the burden of going forward with the evidence upon the party against whom it operates, when contrary evidence is adduced the presumption disappears, although the facts upon which it rested still remain as evidence in the case. A presumption therefore is not evidence." The case of Befay v. Wheeler (1893), 84 Wis. 135, 53 N.W. 1121, is an authority upon the proposition that mere prima facie intendments cannot be so projected into a case as to give probative force to them as against the opposing evidence. In that case plaintiff relied upon the familiar rule that all reasonable presumptions must be made in favor of the regularity of public officers. The court said: "This rule is well established, but it does not appear to be applicable under the present circumstances. It is a mere presumption of law, which operates only in case of absence of evidence. It disappears entirely in the presence of positive, uncontradicted evidence upon the subject."

In Elliott on Evidence, § 93, the author has this to say: "It is sometimes said that the presumption will tip the scale when the evidence is balanced. But in truth, nothing tips the scale but evidence, and a presumption, being a legal rule or a legal conclusion, is not evidence."

In Ausmus v. People (1910), 47 Colo. 167 107 P. 204, 216, 19 Ann. Cas. 491, 501, the court, in speaking of so-called presumptions, or rather inferences, said "Upon whatever basis they rest they operate in advance of evidence or argument, or, irrespective of each, by taking the same for granted; by assuming its existence. * * * The fact, or the deduction from the facts in...

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3 cases
  • Baker v. Krietenstein
    • United States
    • Supreme Court of Indiana
    • December 19, 1916
  • Baker v. Krietenstein
    • United States
    • Supreme Court of Indiana
    • December 19, 1916
  • Kilgore v. Gannon
    • United States
    • Supreme Court of Indiana
    • December 13, 1916
    ...185 Ind. 682114 N.E. 446KILGORE et al.v.GANNON et al.No. 22710.Supreme Court of Indiana.Dec. 13, Appeal from Circuit Court, Vermillion County; Barton S. Aikman, Judge. Action to contest a will by James T. Kilgore and others against Clara Gannon and others. From a judgment for defendants, pl......

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