McCord v. Strader

• Decision Date: 21 December 1948
• Docket Number: 28467.
• Citation: 82 N.E.2d 893
• Parties: McCORD v. STRADER et al. [*])
• Court: Indiana Supreme Court

82 N.E.2d 893

McCORD v. STRADER et al. ^[*])

No. 28467.

Supreme Court of Indiana

December 21, 1948

Appeal from Fountain Circuit Court; Roy C. Fenters, Judge.

Harding & Harding, of Crawfordsville, for appellant.

Ringer & Ringer, of Williamsport, W. J. Sprow, of Crawfordsville, and White & White, of Covington, for appellees.

O'MALLEY Judge.

The appellees, as objectors, brought this action to resist the probate of the will of Nettie A. Strader. The grounds set forth in the complaint, which was filed in accordance with the statute, alleged unsoundness of mind, duress, fraud, and that the will was unduly executed. The matter was submitted to a jury which found that the will was invalid and not admissible to probate.

The overruling of the motion for a new trial is assigned as error, and under that assignment it is alleged that the court erred in refusing to withdraw from the jury the question of the undue execution of the will. The evidence on that subject, together with the inferences that could be drawn therefrom, was such that the jury could have found that the decedent was weak and easily influenced; that the appellant was her physician and prescribed for her for a few years that under order of appellant and his attorney the relatives and friends of the decedent were prevented from seeing and talking with her; that he secured his attorney to write the will of the decedent and that he also secured at least one of the witnesses to the will; and that he had an undue interest in the preparations for the writing of the will of the decedent, who was in no way related to or indebted to him.

From the evidence and inferences as outlined above we believe that the question of undue influence was properly left to the jury. It has been held time after time that an issue should not be withdrawn from the consideration of the jury if there is some evidence on which a verdict against the moving party may be based.

In the case of Herring v. Watson, 1914, 182 Ind. 374, 377 105 N.E. 900, 901, this court, when confronted with the same question now being considered, made this declaration 'The cases of Steinkuehler v. Wempner [1907], 169 Ind. 154, 81 N.E. 482, 15 L.R.A.,N.S., 673, and McReynolds v. Smith [1909], 172 Ind. 336, 86 N.E 1009, clearly establish the proposition that, in a proceeding to probate a will, the burden of proving the due execution of the instrument and the testamentary capacity of the testator rests on the proponents and not on the objectors, if any there be. In the Steinkuehler Case reference is made to Morell v. Morell, 1901, 157 Ind. 179, 60 N.E. 1092 in which it is suggested, by way of argument, that the burden of proving undue influence or unsoundness of mind is on the objectors to the probate of an alleged will, and the suggestion is expressly disapproved.' See Kaiser v. Happel, 1941, 219 Ind. 28, 36 N.E.2d 784; Johnson v. Banker, 1923, 193 Ind. 16, 138 N.E. 505; Willett v. Hall, 1942, 220 Ind. 310, 41 N.E.2d 619.

Furthermore, in the recent case of Sweeney v. Vierbuchen 1946, 224 Ind. 341, 66 N.E.2d 764, this court had before it a case involving a will drawn by an attorney for a decedent, by the terms of which the children of the attorney became beneficiaries. There, at page 348 of 224 Ind., page 766 of 66 N.E.2d, this court said: 'We therefore approve of the generally accepted view that where a confidential relationship exists between a testator and a beneficiary under his will and such beneficiary has been actively concerned in some way with the preparation and execution of such will, such facts cast upon the beneficiary the burden of disproving undue influence.'

We realize that in the above case the fiduciary relationship pertained to the preparation and execution of the instrument under discussion as well as other matters generally, while in the instant case the fiduciary relationship arose in a different manner. It is not necessary for us to consider the applicability of the fiduciary relationship to the question of burden of proof in the instant case because the burden has been, under the authorities, cast upon the proponent of the will regardless of the relationship of the decedent and the proponent.

The action of the court in refusing to withdraw the question of the undue execution of the will is supported by the authorities. The court did not err in refusing to withdraw that question from the jury.

The...