Lamb v. Lamb

• Decision Date: 19 February 1886
• Parties: Lamb and others v. Lamb and others.
• Court: Indiana Supreme Court

105 Ind. 456

5 N.E. 171

Lamb and others

v.Lamb and others.

Supreme Court of Indiana.

Filed February 19, 1886.

Appeal from Pike circuit court.

Ely & Townsend, for appellants.

J. E. McCullough, Posey & Wilson, and Miller & Richardson, for appellees.

Elliott, J.

The appellants instituted this action to set aside the will of Stanton Lamb, deceased. The appellants asked the court to try the case, and deny the appellees a right to a trial by jury, and this request was refused. In this there was no error. The issue in such an action as this was not one of exclusively equitable jurisdiction prior to June 18, 1852, and therefore it is not within the provisions of section 409 of the Revised Statutes. The proceeding to contest a will in a court of law, under our system, is purely one of statutory creation, and the provisions of section 409, Code 1881, do not apply to such proceedings. Trittipo v. Morgan, 99 Ind. 269. In order to bring a case within the provisions of that section of the Code it must appear that the proceeding was such as was exclusively one of chancery jurisdiction, and a proceeding cannot be of chancery jurisdiction which is the creature of a positive statute, and was unknown to the old courts of chancery. The statute of 1843 gave a right to a jury trial in express terms, and this repels the implicationthat an action to contest a will was of exclusive equitable jurisdiction. The right to a trial by jury is treated as not open to question by the authors who have written upon the subject. 1 Redf. Wills, 49, 50; Instructions to Juries, 432.

Several of the appellees were permitted to testify as witnesses upon the question of the mental soundness of the testator, and in the course of their examination gave testimony-as, of course, they could not avoid doing if they testified upon that subject at all-as to matters that occurred prior to the death of the testator. It is argued with much force, and no little plausibility, that the appellees were not competent witnesses under section 499 of the Code. We have given the question much consideration, and our conclusion is that the statute referred to does not prohibit parties from testifying in such a case as this, and upon such a subject as the mental capacity of the testator. The question of the soundness or unsoundness of mind is fully open to investigation by both parties, and it is not a question upon which one party can speak of matters of which only he and the dead had knowledge. The question in such a case is essentially unlike a question that arises in cases where the issue is as to the execution of a contract, a deed, or the like; for in such cases the matter cannot be generally known, and, if the party should say what was not true, it would be impossible to contradict him, while, in such a case as this, the mental capacity of the testator may be proved or disproved by witnesses who knew him, whether parties or not, so that the subject is fully open to investigation. The purpose of the statute was to prevent undue advantage as against those whose interests would be unjustly prejudiced by permitting parties to testify as to matters which they assume were known only to them and the deceased, or, as to matters which from their nature could only have been known to them and the dead. It was not intended to exclude parties from testifying in cases where the subject is one of which the knowledge that the parties profess to have is not hidden from all other living persons. There is nothing in the spirit of the statute, and certainly nothing in the letter, which excludes parties from testifying respecting matters open to the observation of all the friends and acquaintances of the deceased. Such a matter is the mental capacity of the testator, whose will is contested.

While we agree with the appellees' counsel in the view that parties are competent witnesses upon the subject of the mental capacity of a testator, we do not concur in the narrow construction which they give the statute, for we think there are cases where the questions turn upon matters connected with the execution of a will, in which parties would be incompetent witnesses. Wiseman v. Wiseman, 73 Ind. 112, and cases cited; Cupp v. Ayers, 89 Ind. 62;Cottrell v. Cottrell, 81 Ind. 88.

It is argued that, as the executor was a party to the action, the parties were incompetent witnesses, under section 498 of the Code. We think that statute does not apply to such a case as this; but that it applies to cases where a claim is asserted against a decedent's estate, or where a claim asserted by the representative of the decedent is resisted. We do not regard that statute as prohibiting heirs from testifying, in a suit to set aside a will, as to the mental capacity of the testator, although his executor is a party to the action.

There was no error in permitting the appellees to prove that the statements in the will, that the testator had advanced the sums designated to the parties named, were erroneous. This evidence was competent for the purpose of showing the mental condition of the testator, and not for the purpose of contradicting the will. We agree with appellants' counsel that parol evidence cannot be given to contradict or vary the statements of a will, and fully approve the rule declared in the case of Judy v. Gilbert, 77 Ind. 96;Bunnell v. Bunnell, 73 Ind. 163; and Grimes v. Harmon, 35 Ind. 198. In declaring the evidence offered in this case competent, we do not trench upon that rule, for we simply decide that the evidence is competent for the purpose of showing the mental condition of the...