Pepper v. Martin

• Decision Date: 02 November 1910
• Docket Number: No. 21,462.,21,462.
• Citation: 175 Ind. 580,92 N.E. 777
• Parties: PEPPER et al. v. MARTIN et al.
• Court: Indiana Supreme Court

175 Ind. 580

92 N.E. 777

PEPPER et al.

v.MARTIN et al.¹

No. 21,462.

Supreme Court of Indiana.

Nov. 2, 1910.

Appeal from Circuit Court, Wayne County; H. C. Fox, Judge.

Action by Ida M. F. Martin and others against Mary Pepper and others. From a judgment for plaintiffs and an order denying a new trial, defendants appeal. Reversed, with directions to sustain a motion for new trial and for further proceedings.

McKee, Little & Frost, Reuben Connor, and Henry U. Johnson, for appellants. R. N. Elliott, Thomas J. Study, and Forkner & Forkner, for appellees.

MONKS, C. J.

This action was brought by appellees to contest the will of George Frybarger, deceased, after the same had been duly probated, on the alleged grounds that the testator was of unsound mind when the will was executed, and that the will was procured by undue influence. The case was tried by a jury and a general verdict returned in favor of appellees. Over a motion for a new trial judgment was rendered setting aside the will. The errors assigned call in question the action of the court in overruling the motion for a new trial.

It appears from the record that the will in controversy was executed by the testator on July 10, 1905, and that before that time, to wit, in 1866, he had been in a proper proceeding adjudged to be a person of unsound mind and incapable of managing his own estate; that thereupon a guardian was appointed to take charge thereof; that said guardian duly qualified and assumed the duties of his trust; that said adjudication and guardianship continued in full force up to the death of the testator.

The court instructed the jury, by instruction 16, that, while the adjudication in said cause was prima facie evidence of unsoundness of mind, it did not conclusively establish the existence of such unsoundness of mind as would incapacitate him from making a valid will. The court as a part of said instruction 16 informed the jury that: “In the trial of this case, much evidence had been introduced by both the plaintiffs and defendants, other than the said adjudication and letters of guardianship, for the purpose of showing what the mental condition of the said George Frybarger actually was at the time he executed his will. The court therefore instructs you that in your deliberations for the purpose of finding a verdict it will be your duty to consider all the evidence that has been given in the case in connection with the presumption created by said adjudication and letters of guardianship, and determine what, in your judgment, is proved by a fair preponderance thereof, if any such there be. If you, in your judgment, find by a fair preponderance of the evidence that George Frybarger, at the time he executed the will in question, had, as a fact, a sound and disposing mind when tested by the rules set forth in these instructions, and that he executed such will understandingly, and did what he intended to do free from any undue influence, then you would be justified in upholding the will and in returning a verdict for the defendant; otherwise you would be warranted in finding a verdict for the plaintiffs.”

This instruction so far as it informed the jury that they should find for appellees, plaintiffs below, unless appellants, the defendants below, proved by a fair preponderance of the evidence that said testator was of sound and disposing mind, and free from any undue influence, was erroneous. Appellees by bringing this action to set aside the will and the probate thereof assumed the burden of showing by a preponderance of the evidence that the testator at the time he executed the will did not have testamentary capacity, or that the same was the result of undue influence. Steinkuehler v. Wempner, 169 Ind. 154, 156, 81 N. E. 482, 15 L. R. A. (N. S.) 673, and cases cited; Roller v. Kling, 150 Ind. 159, 163, 49 N. E. 948.

It is true the adjudication that said Frybarger was a person of unsound mind and incapable of managing his own estate, which was in full force when said will was executed, was prima facie evidence that he was of unsound mind at that time. Harrison v. Bishop, 131 Ind. 161, 165, 30 N. E. 1069, 31 Am. St. Rep. 422. But it is also true that the party not having the burden of proof as to such unsoundness of mind is not required to prove the contrary by a preponderance of the evidence, but it is sufficient if the evidence on this question is evenly balanced so that there is no preponderance either way. In such case the party having the burden of proof cannot recover. Said instruction was clearly erroneous in so far as it required appellants,...