Loeser v. Simpson

• Decision Date: 10 March 1942
• Docket Number: No. 27592.,27592.
• Citation: 39 N.E.2d 945,219 Ind. 572
• Parties: LOESER et al. v. SIMPSON et al.
• Court: Indiana Supreme Court

219 Ind. 572

39 N.E.2d 945

LOESER et al.

v.SIMPSON et al.

No. 27592.

Supreme Court of Indiana.

March 10, 1942.

Action by Edgar L. Simpson against Abe L. Loeser, as trustee under a provision of the will of Robert J. Simpson, deceased, and administrator de bonis non with the will annexed of deceased's estate, and others, to contest the will. From a judgment setting aside the will, named defendant appeals.

Reversed, with instructions.Appeal from Warrick Circuit Court; J. Harold Hendrickson, judge.

Carl M. Gray, of Petersburg, Leslie Hendrickson, of Boonville, and W. D. Curll, of Petersburg, for appellants.

Ely, Corn & Nixon, of Petersburg (Leonard Ashley, of Boonville, of counsel), for appellees.

RICHMAN, Judge.

This appeal is from a judgment in an action to contest a will, after probate, upon a complaint alleging that the testator was of unsound mind and the will unduly executed because of fraud, duress and undue influence. There was a general verdict setting aside the will. All questions herein discussed are properly raised by motion for a new trial the overruling of which is the only error assigned.

Aside from one question as to the admissibility of evidence, all the errors reliedupon are based upon the rule that it is error for the court to give instructions which are not applicable to the evidence. Indiana Union Traction Co. v. Downey, 1912, 177 Ind. 599, 606, 98 N.E. 634, 636;Indianapolis Saddlery Co. v. Curry, 1923, 193 Ind. 346, 352, 138 N.E. 337, 339;Jarrett v. Ellis, 1923, 193 Ind. 687, 141 N.E. 627.

At the request of appellee Edgar L. Simpson, who was the only plaintiff below, the court gave two instructions on insane delusion. The only evidence suggested as warranting the instructions was a statement by testator that he had lost his home. When the will was executed he lived with his daughter. A few days later she found out about the will. There was some unpleasantness and he left for other residence. It was with reference to this leaving that he made the statement. If he believed what he said nevertheless the belief was not ‘a spontaneous conception and acceptance of that as a fact which has no existence except in the imagination, and which is persistently believed in against all evidence and probability.’ On the contrary his belief was based on fact. In any event the whole incident occurred after he made his will and had no part in its execution. The court erred in giving the instructions. Friedersdorf v. Lacy, 1910, 173 Ind. 429, 433, 90 N.E. 766, 768.

Of his own motion the court gave four and at the request of appellee two instructions on the subject of undue influence, notwithstanding the repeated efforts of appellants by motions and tendered instructions to take that issue from the jury. This was error for there is not a syllable of evidence in the record from which a reasonable inference may be drawn that testator was unduly influenced in making his will.

The only evidence relied upon by appellee as showing such influence consisted of declarations of testator to his daughter a few days after he executed the will. They do not tend to prove undue influence but if they did they were inadmissible because they were not made at the time when he was engaged in executing the will. Crane v. Hensler, 1925, 196 Ind. 341, 353, 141 N.E. 51,146 N.E. 577,148 N.E. 409. Besides she was not competent to testify since she was a party to the action. § 2-1716, Burns' 1933, § 305, Baldwin's 1934. This statute is applicable to will contests. Kennedy v. Kennedy, 1922, 192 Ind. 353, 136 N.E. 557. Appellants'...