Ludwick v. Banet
| Decision Date | 10 February 1955 |
| Docket Number | No. 18579,18579 |
| Citation | 124 N.E.2d 214,125 Ind.App. 465 |
| Parties | James K. LUDWICK, Executor of the Last Will and Testament of Mildred M. Hobbs, Deceased; James K. Ludwick, Appellants, v. Richard BANET, George Richart, Mary Fryback, Florence Monnot, Gertrude Haag, Appellees. |
| Court | Indiana Appellate Court |
Hermann F. Busse, Ray McAdams, James P. Murphy, Ft. Wayne, for appellants.
Hayes & Hayes, Ft. Wayne, for appellees.
The appellee, Richard Banet, brought this action to contest the will of his mother, Mildred M. Hobbs, deceased. His complaint alleged that the will was invalid for the reason that the testatrix, Mildred M. Hobbs, did not have the necessary testamentary capacity; that the will was obtained under undue influence; and that the will of the testatrix was unduly executed.
The appellant, James K. Ludwick, and the appellee, Richard Banet, were half-brothers and the sons of Mildred M. Hobbs. Richard Banet was born to Mildred M. Hobbs out of wedlock, and was adopted when he was a small boy by Frank and Ina Banet.
The evidence discloses that Richard Banet met his mother for the first time either the last day of March or the first day of April, 1952. The decedent, Mildred M. Hobbs, married one Ludwick in the year of 1913 and separated in July of 1914. The appellant, James Ludwick, was born out of this marriage the 25th day of January, 1915. The appellant lived with his grandparents until he was about seventeen years of age, after which time he lived with his mother, Mildred M. Hobbs, for a short period of time. Later the decedent married one Hobbs who died in 1946. During all her lifetime Mildred M. Hobbs was steadily employed. The last years of her life she was suffering from an incurable disease which necessitated four operations. She died April 28, 1953, leaving a last will and testament dated February 14, 1953. The will ws admitted to probate May 1, 1953.
The cause was submitted to a jury. The jury entered the following verdict:
'We, the Jury, find for the plaintiff; that the instrument of writing probated as the Last Will and Testament of Mildred M. Hobbs, deceased, is invalid; that it is not her last will and testament and its probate should be set aside.'
Judgment was entered accordingly.
The sole error relied upon for reversal is the overruling of appellants' motion for new trial, which is as follows:
'Comes now the defendant in the action above captioned and moves the court to grant a new trial of this cause for the following reasons:
'(1) The verdict of the jury is not sustained by sufficient evidence.
'(2) The verdict of the jury is contrary to law.
'(3) Error of law occurring at the trial in this: The court erred in giving and reading to the jury, over the written objection of the defendant, plaintiff's instruction No. 9.
'Wherefore, defendant prays that he be granted a new trial herein.'
The record discloses that plaintiff tendered instructions numbered 1 to 7 inclusive. We do not find any place in the transcript or briefs where plaintiff's instruction No. 9 is set out. Therefore we do not deem it necessary to give this further consideration. Rule 2-17(f); Quail v. Banta, 1943, 113 Ind.App. 664, 48 N.E.2d 841.
It is a well-recognized rule that if there is any evidence of probative value to support the verdict, it would be our duty to affirm. After a careful examination of the evidence in the record most favorable to the appellee, we are of the opinion there is no substantive evidence of probative value to sustain the verdict of the jury that the will was invalid because the testatrix did not have the necessary testamentary capacity, or that she was unduly influenced, or that the will was unduly executed. Noyer v. Ecker, Ind.App.1954, 119 N.E.2d 902; Daugherty v. Daugherty, 1945, 115 Ind.App. 253, 57 N.E.2d 599; Quail v. Banta, supra; Wersich v. Phelps, 1917, 186 Ind. 290, 116 N.E. 49. The record discloses that a doctor and a relative of the testatrix testified that in their opinion she was of sound mind. This evidence was uncontradicted. We find no evidence in the record herein that she did not have testamentary capacity.
The real issue in this case is whether or not the undue influence alleged to have been practiced by the appellant James K. Ludwick on his mother, Mildred M. Hobbs, was at a time she was under the influence of drugs and opiates to the extent that the will was not her voluntary act and deed. There is a complete lack of evidence to sustain the verdict of the jury that the execution of the last will and testament of Mildred M. Hobbs was not her voluntary act or deed, or that she was in anywise induced by unlawful means or undue influence to make the will in question.
Deery v. Hall, 1933, 96 Ind.App. 683, 175 N.E. 141, 145.
We find no statement in the record that supports the contention of appellee that appellant dictated or wrote the will of Mildred M. Hobbs, or procured it to be written, or participated in or had anything to do with dictating the provisions thereof. Willett v. Hall, 1942, 220 Ind. 310, 41 N.E.2d 619.
On the question of undue execution the record discloses that the will in question was duly admitted to probate. This placed the burden of proving undue execution on the appellee Richard Banet. The only evidence bearing on the question of undue execution that we find in the record is the statement of Lawrence A. Lord, one of the subscribing witnesses, to the effect that Admitting this to be true, as we must, the will could have been duly executed nevertheless if the testatrix had then acknowledged the signature appearing on the will as her own. The appellee Richard Banet, who had the burden, failed to prove lack of acknowledgement. In other words he failed to prove an essential element of his case based on undue execution. Had the case been tried on objections to probate the burden would have been on the appellants and the silence of the record as to acknowledgement would have been fatal to their case.
Judgment reversed and cause remanded with instructions to grant appellants' motion for new trial.
The majority opinion impresses me that on at least one of the issues, evidence has been weighed, the province of the jury has been invaded, and that not all legitimate means to uphold the verdict have been resorted to. It is our duty, as has been many times declared, to sustain the verdict of the jury or the finding of the trial court where there is any substantive evidence of probative value in its support, including reasonable inferences the jury is authorized to draw from the evidence.
One of the charges made in appellee's complaint is that the will referred to in the majority opinion was unduly executed. Such charge includes the manner of the execution of the will and whether it was legally executed. The jury found that the will 'is invalid' and such was not the last will and testament of the decedent. The main opinion broadly holds that there was no evidence to sustain the verdict.
The matter which gives rise to my disagreement with the prevailing opinion is this: The appellants, as defendants below, put on the stand as witnesses, apparently to show the valid execution of the will, the two subscribing witnesses thereto. One was Lawrence Lord, apparently a neighbor of the decedent, and the other Herman Busse, an attorney.
Busse testified that decedent signed the will in the presence of both subscribing witnesses. Lord testified, on pertinent matters, on direct examination in this fashion:
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On cross-examination by appellee's attorney, Lord testified:
There was no further evidence by either party as to her signature or whether she acknowledged to Lord that the signature on the will was her signature.
It definitely appearing from Lord's testimony that the will was not signed in his presence by the testatrix, it seems to me, from the holdings of our court that where the due execution of the will is contested, it became necessary, for a valid execution of the will, that it be established by the evidence that testatrix requested said witness to sign said will as a subscribing witness and that she acknowledged to him that the signature on the will was her signature. Reed v. Watson, 1867, 27 Ind....
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