Love v. Harris

• Decision Date: 20 June 1957
• Docket Number: No. 18787,18787
• Parties: Lucy LOVE, Appellant, v. Sarah HARRIS, Pheba Colyer, Rosanna Courtney and Marion National Bank of Marion, Indiana, Administrator W.W.A. of the Estate of William Luther Cranston, Deceased, Appellees. . In Banc
• Court: Indiana Appellate Court

Page 450

143 N.E.2d 450

127 Ind.App. 505

Lucy LOVE, Appellant, v. Sarah HARRIS, Pheba Colyer, Rosanna Courtney and Marion National Bank of Marion, Indiana, Administrator W.W.A. of the Estate of William Luther Cranston, Deceased, Appellees.

No. 18787.

Appellate Court of Indiana. In Banc.

June 20, 1957.

Peterson & Ervin, Hartford City, for appellant.

Brown & Shadle, Marion, Albert W. Ewbank, Indianapolis, for appellee.

PFAFF, Judge.

This action was brought by the individual appellees against the appellant and the appellee bank as administrator with the will annexed to contest the will of William Luther Cranston, who died on June 18, 1953, and which will was admitted to probate on June 26, 1953. Under the provision of this will, the individual appellees, who are nieces of the deceased, were given $100 each, and appellant, who was a neighbor, was given the residue of the estate.

For convenience, whenever the word 'appellees' is used hereinafter, it refers to the individual appellees only.

Trial by jury resulted in a verdict that the will was invalid and not the last will and testament of the decedent. Judgment was entered on the verdict and appellant's motion for a new trial was overruled. The overruling of this motion is assigned as error.

The complaint alleges that at the date of the execution of the will the decedent was of unsound mind and incapable of making a will and that the pretended will was unduly executed.

Appellant assails the verdict as not sustained by sufficient evidence and as contrary to law for lack of evidence.

There was evidence of the following facts: Decedent, an elderly man, had lived with his twin brother and a sister on a farm located in Washington Township, Grant County, Indiana. They predeceased him, and he continued to live on the farm. He was very dirty, filthy, grimy, unshaven, and his hair was long, shaggy, tangled and seldom cut. His clothes were extremely dirty. The day bed where he slept was filthy. Dogs, geese and chickens had the run of the house. There was a hog wallow about ten feet from the well. Some of the windows were broken and boarded up. Lay witnesses expressed the opinion that decedent was of unsound mind over a period of many years, including the date of making the will. He was childlike, simple, stupid, confused, rambling in his conversation and easily impressed and influenced. If 'kidded' and told stories he would do anything he was told to do. He liked to talk of coon dogs and hunting. Frequently he failed to recognize acquaintances and relatives.

Clessie Davidson, a tenant on decedent's farm, paid cash rent and had paid to March 1, 1950, which is the date of the execution of the last will and testament of the decedent, William Luther Cranston. On February 28, 1950, the tenant went to decedent and told decedent he would be back the next morning to take him to the bank and give him another check. Appellant's husband was present on this occasion. The tenant went back on March 1, and found decedent was gone. He found decedent in town in front of the home of Chester Marley, the man who was named as executor, in company with Maryley and appellant's husband. The tenant asked appellant's husband why he had taken decedent to town, and appellant's husband stated that decedent was sick and needed a doctor. Decedent said nothing. Marley and appellant's husband went to the office of a lawyer, who had not known decedent before. Marley told the lawyer that decedent wanted to make a will. The lawyer testified that decedent 'was a man that didn't seem to talk to anybody, especially strangers'. He stated that he started to talk to decedent and discovered that decedent couldn't talk very plain and so he asked the other two to tell him what decedent wanted to do with his property. They told the lawyer what to put in the will. The secretary read the will to decedent. The lawyer then asked him if that was what he wanted and decedent nodded his head. The lawyer testified that decedent claimed he couldn't write his name (although there is evidence that decedent from time to time signed various checks) and the lawyer's secretary wrote decedent's name on the will while decedent touched the pen. Appellant's husband paid the fee for drawing the will, and it was turned over to him. Marley and appellant's husband were present at all times in the lawyer's office.

The following day decedent stated to a niece, Pheba Colyer, one of the appellees, that he had 'fixed' his tenant, Davidson, on the farm; that he had paid the lawyer $60 to have him thrown off. Decedent was taken to the lawyer's office by appellant's husband on other occasions after March 1, 1950, and an ejectment suit was actually filed against the tenant, Davidson, on March 23, 1950, and later dismissed.

The record further shows that on July 10, 1950, the appellant's husband, LeRoy E. Love, filed a petition for the appointment of a guardian for decedent alleging that he was incapable of managing his affairs by reason of old age and infirmity, and on July 25, 1950, the appellee, Marion National Bank of Marion, Indiana, was duly appointed guardian of said decedent.

In Workman v. Workman, 113 Ind.App. 245, at page 267, 46 N.E.2d 718, at page 726, this court, speaking through Judge Royse, said:

'In order to determine whether or not there was any evidence to support the allegation of undue influence, we must first determine what constitutes undue influence, and second, the kind and quantum of evidence necessary to sustain such an allegation.

'Undue influence necessarily involves a state of mind. It is a thing that is insubstantial. It may be brought about by either mental or physical coercion, fear, a desire for peace, or a feeling which one is unable to resist. The courts have used different phraseology in defining it, but the theory has been generally the same.

'Page on Wills, Vol. 1, § 184, says: 'The theory which underlies the doctrine of undue influence is that testator is induced by various means, to execute an instrument which, although his, in outward form, is in reality not his will, but the will of another person which is substituted for that of testator. Such an instrument is, in legal effect, not a will at all. Although executed by testator, his intention to make a will is so defective that the instrument is invalid'.

'Because undue influence necessarily involves an operation of the mind, usually the evidence to establish it is circumstantial. It is generally resorted to stealthily and with an intent on the part of the person or persons exercising it to conceal their motive and intent. Page on Wills, Vol. 2, § 811, says: 'From the nature of undue influence, from the fact that it is frequently employed surreptitiously, that it is shown chiefly by its results, and that, in any event, the question is usually one of the effect of a long course of conduct upon the mind of the individual in question, the evidence by which undue influence is established is usually circumstantial. Undue influence is essentially a question of fact. The party who contests the will is entitled to the benefit of all inferences of fact which may be deduced fairly and reasonably, from the direct evidence. Direct evidence is necessary only to establish the facts from which undue influence may reasonably be inferred. Although each fact by itself may be insufficient, the facts taken together may justify, and even require, a finding of undue influence.' (Our italics.)

'In the case of Davis v. Babb, 1921, 190 Ind. 173, 179, 180, 181, 125 N.E. 403, 405, our Supreme Court, in considering the question of undue influence, said: 'The sufficiency of the evidence to sustain a verdict on appeal depends solely on the presence in the record of some competent evidence which tends to support that verdict. (Citing authorities.) In determining whether the evidence is sufficient to sustain the verdict of the jury, this court will consider, not only the positive testimony of the witnesses, but also such inferences as flow naturally from established facts. * * * The issue of undue influence joined in this case, like other questions, must be determined from all the facts and circumstances given in the evidence. The ultimate inference of undue influence or its absence, was one of fact to be drawn by the jury, and not to be declared by the court as a matter of law. The exercise of undue influence may be shown by circumstantial evidence, and the provisions of the will and the circumstances attending its execution may be sufficient to warrant a finding against its validity. Friedersdorf v. Lacy, 1910, 173 Ind. 429, 436, 90 N.E. 766. Such is the nature of the human mind that, when it has been habituated to the influence of another, it will yield to that influence and suffer it to have its effect, although the person in the habit of its exercise may not be present or exert it at the time an act is done. It may happen that the fruit of an evil and improper influence is born long after the influence is exerted. * * * In the contest of a will on the ground of undue influence, the evidence required to establish the undue influence need not be of that direct, affirmative and positive character which is required to establish a tangible physical fact. The only positive and affirmative proof required is of facts and circumstances from which the undue influence may be reasonably inferred. Backman v. Edsall, 1902, 17 Colo.App 429, 68 P. 790. In the case just cited, Blackman v. Edsall, supra, the court said: 'The chief complaint and contention of the proponent is that the evidence presented and upon which the jury based its verdict sustaining the charge of undue influence was insufficient by reason of its lacking in that affirmative and positive character which is claimed to be necessary. It follows from the very nature of the thing that evidence to show undue influence must be largely in effect circumstantial. It is an intangible thing which only in the rarest...