Oilar v. Oilar
| Decision Date | 19 November 1918 |
| Docket Number | 23,107 |
| Citation | 120 N.E. 705,188 Ind. 125 |
| Parties | Oilar et al. v. Oilar |
| Court | Indiana Supreme Court |
Rehearing Denied March 6, 1919.
From Miami Circuit Court; Charles A. Cole, Judge.
Action by Nellie Oilar against Elizabeth Oilar and others. From a judgment for the plaintiff, the defendant appeals.
Affirmed.
R. J Loveland, D. G. Ridenour, James C. Blacklidge, Conrad Wolf and Earl B. Barnes, for appellant.
Albert Ward and Bell, Kirkpatrick & Voorhis, for appellee.
Appellee instituted this action to have declared invalid a will and codicil alleged to have been executed by her father, Henry C Oilar, under which appellants would receive the entire estate of the testator. A general verdict for appellee was upheld by the circuit court in overruling appellants' motion for a new trial, and all of the questions presented for our consideration arise out of the attack on that ruling. The complaint avers: (1) That the alleged will of the testator, dated November 25, 1908, and the codicil thereto, dated September 4, 1912, were each procured through the exercise of undue influence; and (2) that on each occasion the testator was of unsound mind, but appellants earnestly contend that no part of such charge was sustained by the evidence introduced at the trial.
A preliminary contention is made that, if the will in suit is valid, appellee would have no right to contest the codicil which purports only to name a new executor and to separate into several tracts certain lands which were previously devised to appellants as a common estate. There is no occasion here to dispute this contention, but, as the execution of the codicil, if valid, served to republish the original will except as modified (Manship v. Stewart [1913], 181 Ind. 299, 301, 104 N.E. 505; Barnes v. Phillips [1915], 184 Ind. 415, 416, 111 N.E. 419), the burden rested on appellee to establish the invalidity of both instruments before she was entitled to a verdict.
We are required, then, to determine whether the evidence is sufficient to sustain the finding of the jury as to each instrument. Only three witnesses expressed an opinion that Henry Oilar was of unsound mind on November 25, 1908, and appellants earnestly insist that the facts stated by each of said witnesses as a basis for his opinion show clearly that the testator then had mind sufficient to know and understand the business in which he was engaged, the extent of his estate, the persons who would naturally be supposed to be the objects of his bounty, and that he could keep all of these things in mind long enough to form a rational judgment concerning them. Under such circumstances, if conceded to be true, the opinions of the several witnesses possessed little if any, probative value, but appellants' contention that the verdict of the jury must therefore be set aside rests on the erroneous assumption that the record contains no other evidence of unsoundness of mind on the part of Henry Oilar at the time the alleged will was executed. There is testimony to the affect that after Mr. Oilar underwent a serious operation in the year 1903, his health gradually failed and his memory became weakened and uncertain; that it was difficult for him to turn his mind from one subject of conversation to another, and that he did not readily grasp matters which were explained to him. The will states that at the time of its execution the testator had already advanced and given to appellee all of the interest in his estate which he desired her to have, but there is other evidence tending...
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