Manship v. Stewart
| Decision Date | 11 March 1914 |
| Docket Number | 22,414 |
| Citation | 104 N.E. 505,181 Ind. 299 |
| Parties | Manship et al. v. Stewart et al |
| Court | Indiana Supreme Court |
From Hamilton Circuit Court; Meade Vestal, Judge.
Action by Irene Stewart and others against Mattie Manship and others, to set aside a will and codicils. From a judgment sustaining the will and setting aside the codicils, the defendants appeal.
Reversed.
H. C Ryan, Joseph A. Roberts, Eli P. Myers and Shirts & Fertig for appellants.
Major A. Downing, Kane & Kane and H. N. Spaan, for appellees.
Appellees instituted this action to set aside the will and ten codicils of Madison Brooks, deceased. The cause was submitted to a jury on the issue of the testator's mental capacity when he executed the several instruments in question, and resulted in a verdict for appellants as to the original will and for appellees as to each of the codicils mentioned in the complaint. Appellants' motion for a new trial was overruled and such ruling is challenged by the first assignment of error.
It appears from the evidence that Madison Brooks executed his last will and testament on January 17, 1896. Between that date and May 27, 1909, the day of his death, he added to said will eleven codicils, of which the eighth reads as follows:
This codicil, duly executed, was found after the testator's death in the same safety box with the will and other codicils here involved, and was admitted to probate with them. The wording of the codicil itself and the circumstances surrounding its finding and probate are sufficient to estop appellees from now asserting that it has no reference to the will and codicils of prior date which are now in suit. 1 Williams, Executors (7th Am. ed.) 248; Wikoff's Appeal (1850), 15 Pa. 281, 53 Am. Dec. 597; Harvey v. Chouteau (1851), 14 Mo. 587, 55 Am. Dec. 120; Burge v. Hamilton (1884), 72 Ga. 568. Appellees, however, failed to set out this codicil in their complaint and, although it was read in evidence as a codicil to the testator's will and as a part of the record testamentary, no attack was made on its validity and there is no finding that it is invalid. In oral argument, counsel for appellees asserted that clerical inadvertence accounts for the failure to attack this codicil in the complaint. Out of these facts arises the principal question before us, which is presented by appellants' contention that the execution of said eighth codicil on April 2, 1908, operated as a confirmation and republication of the will and all previous codicils; that the sanity of the testator on that date has been adjudicated by the probate of said codicil, which probate still stands; that the verdict denouncing all prior codicils, therefore, is not sustained by the evidence. The probate of the eighth codicil established the prima facie validity thereof and until it is set aside in a direct action for that purpose, the presumption remains that on the date of its execution the testator was of sound mind and disposing memory. Sanger v. Bacon (1913), 180 Ind. 322, 101 N.E. 1001; Burns v. Travis (1888), 117 Ind. 44, 18 N.E. 45.
The general rule, as stated and supported by authority in 40 Cyc. 1216, is that "a codicil executed with the formalities required by statute for the execution of wills operates as a republication of a will, so far as it is not altered or revoked by the codicil, if the intention of the testator is not thereby defeated; and the two are to be regarded as but one instrument, speaking from the date of the codicil." See, also, Rood, Wills § 392 et seq.; Page, Wills § 307; 1 Jarman, Wills (6th ed.) §§ 198, 200; Schouler, Wills (3d ed.) § 450; 1 Williams, Executors (7th Am. ed.) 248, 255. If the will which is thus republished had codicils added to it, the presumption arises, in the absence of a clear intent to the contrary, that the testator meant to ratify and confirm the will as amended by such codicils, and the codicils also are republished. Schouler, Wills (3d ed.) § 450, and cases cited.
The application of these rules is best illustrated by reference to some of the decided cases. In Brown v. Riggin (1880), 94 Ill. 560, it appears that the testatrix executed a will and three codicils, all of which were duly executed. In a suit to contest the will and codicils on the ground of unsoundness of mind, the jury was so instructed as to require it to find the testatrix capable at the several times when the instruments in question were executed. This was held to be error, the court stating, at page 569 of the opinion, that "If the jury were satisfied of her capability at any one time, it should have validated the act then done, and the preceding acts by that means republished."
The case of Stevens v. Myers (1912), 62 Ore 372, 121 P. 434, 126 P. 29, is very similar to the case at bar as will appear from the following quotation from the opinion therein, at page 397: ...
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