Pence v. Myers
| Decision Date | 07 May 1913 |
| Docket Number | 22,241 |
| Citation | 101 N.E. 716,180 Ind. 282 |
| Parties | Pence et al. v. Myers et al |
| Court | Indiana Supreme Court |
Rehearing Denied October 15. 1913.
From Grant Superior Court; Robert M. VanAtta, Judge.
Action by Sarah Survilla Myers and others against Mary Elizabeth Pence and others. From a judgment for plaintiffs, the defendants appeal.
Reversed.
Condo & Browne and W. S. Marshall, for appellants.
A. E Steele, S. L. Stricler, R. A. Heavilin, Louis B. Ewbank, John W. Hanan and J. Frank Hanan, for appellees.
Appellees brought this action against appellants to set aside the probate of and to contest the last will and testament of their father, Solomon Pence, deceased. A trial by jury resulted in a verdict for appellees. Appellants' separate and several motions for a new trial were overruled and this appeal taken.
It is first insisted that the verdict of the jury is not supported by sufficient evidence and is contrary to law. In a proceeding to contest a will which has been admitted to probate, the burden of proof is on the plaintiff. Steinkuehler v. Wempner (1907), 169 Ind 154, 81 N.E. 482, 15 L. R. A. (N. S.) 673; Blough v. Parry (1896), 144 Ind. 463, 491, 40 N.E. 70, 43 N.E. 560; Turner v. Cook (1871), 36 Ind. 129, 138.
Appellees introduced evidence tending to show that both before and after the execution of his will, the testator was at times forgetful; that he sometimes failed to recognize persons whom he knew; that he talked very little and then with difficulty; that he got lost in his own woods, and was in a feeble condition physically. Some of the witnesses testified that they had seen him pick stones out of the road and out of holes into which they had been thrown; that on such occasions he sometimes failed to heed the approach of automobiles and other vehicles; that he had hallucinations as to the number of trees he had set out and the number of houses he had built in his lifetime; that although possessed of considerable property, he sometimes spoke of having nothing; that he dug a useless trench in his garden which had to be filled up; that he wandered away from home and had to be brought back; that he, on one occasion, got up in the middle of the night and pumped water; that he wore a hat away from a store without buying it; and that he was once seen on his hands and knees barking like a dog at some hogs in the woods.
These and similar incidents in the later years of the testator's life were undoubtedly indicative of an eccentric and peculiar state of mind but when considered with the fact that he was afflicted with rheumatism for many years prior to his death and suffered intense pain therefrom, and that during the fall and spring preceding the making of his will he was seriously ill with la grippe so that his speech was affected and was at times delirious, there is serious question as to whether his peculiarities were the result wholly of mental weakness or, partially at least, of physical disabilities. The verdict of the jury, however, settles all disputed issues of fact and is "that Solomon Pence was, on the 15th day of June, 1908, (the date of the execution of the will) a person of unsound mind."
It is necessary, however, that appellees should go further and prove that testator's mental unsoundness affected his testamentary capacity. To determine such capacity the test is, Considering all perversion, peculiarities and hallucinations of the mind, does there yet remain in the subject an untrammeled intellect sufficiently strong and rational to know the extent and value of his property, the number and names of those who are the natural objects of his bounty, their deserts with reference to their conduct toward and treatment of him, and memory sufficient to carry these things in mind long enough to have his will prepared and executed? For decisions supporting this rule, in some of which the testator's infirmities were even more marked than in this case, see: Hoffbauer v. Morgan (1909), 172 Ind. 273, 277, 88 N.E. 337; Young v. Miller (1896), 145 Ind. 652, 44 N.E. 757; Durham v. Smith (1889), 120 Ind. 463, 22 N.E. 333; Geiger v. Bardwell (1912), 255 Ill. 320, 99 N.E. 582; Kingsbury v. Whitaker (1880), 32 La. Ann. 1055, 36 Am. Rep. 278; Gesell v. Baugher (1905), 100 Md. 677, 60 A. 481; Merrill v. Rush (1881), 33 N.J. Eq. 537; In re Jones' Will (1893), 25 N.Y.S. 109, 5 Misc. 199; In re Vedder (1888), 6 Demarest (N. Y.) 92, 14 N.Y. 470; Shreiner v. Shreiner (1896), 178 Pa. 57, 35 A. 974.
The testimony of several witnesses in the case at bar indicates that the provisions of this will are in substantial accord with the testator's intentions as expressed on occasions other than at the time of the execution of the instrument, at least one of these occasions being about a year prior thereto; that each of the appellees married without their father's knowledge; that appellee Sarah Myers moved to Nebraska immediately after her marriage and did not visit her father in over twenty-five years until she came to Indiana in the spring of 1908 to join her sister, appellee Mary Drook in a suit to have their father declared of unsound mind and to have a guardian appointed for him, which suit was dismissed on the second day of the trial; that the testator expressed great regret that the suit was brought and yet a few months later remembered appellees in his will with bequests to each in the sum of $ 500; that he advanced certain sums of money to them in his lifetime and made two trips to Nebraska to...
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