Phillips v. Gammon, No. 23310.

• Docket Nº: No. 23310.
• Citation: 124 N.E. 699, 188 Ind. 497
• Case Date: October 29, 1919
• Court: Supreme Court of Indiana

188 Ind. 497
124 N.E. 699

PHILLIPS
v.
GAMMON et al.

No. 23310.

Supreme Court of Indiana.

Oct. 29, 1919.

Appeal from Circuit Court, Warrick County; Ralph E. Roberts, Judge.

Action by Shirley Gammon and others against Willard Phillips. Judgment for plaintiffs, and defendant appeals. Reversed, with instructions.

[124 N.E. 700]

Roscoe Kiper and Henry F. Fulling, both of Boonville, for appellant.

C. J. Lindsey, S. B. Hatfield, and W. S. Hatfield, all of Boonville, and John R. Brill, F. H. Hatfield, and John W. Brady, all of Evansville, for appellees.

MYERS, J.

Appellees brought this action to contest and set aside the last will of Payton D. Gammon, on the ground that at the time the will was executed he was: (1) A person of unsound mind; (2) that he “was under undue influence”; and (3) that the pretended will was unduly executed. The complaint was in one paragraph, and a general denial thereto formed the issues submitted to a jury, resulting in a verdict and judgment setting the will aside on the ground of unsoundness of mind. The trial court granted Phillips as executor permission to prosecute this appeal. In this court he assigns and relies on alleged errors of the court below: (1) In overruling his motion to make the complaint more specific; and (2) in sustaining appellees' motion to reject and strike from the files his motion for a new trial.

[1][2] As to the first assignment of error it will be noticed that the first and third grounds for contest are stated in the language of the statute. The second cause is not expressly made a statutory ground for contest, but it is so authorized, and not infrequently relied on by contestors. The three statements here counted upon-“unsoundness of mind,” “undue execution,” and “undue influence”-all have a well-known and well-recognized legal meaning when used, as in this case, to state a cause of action. However, under the allegations of unsoundness of mind and undue execution, any evidence tending to show undue influence is admissible. Clearspring Tp. v. Blough, 173 Ind. 15, 24, 88 N. E. 511, 89 N. E. 369.

Furthermore, this court has ruled that a motion to make more specific is unavailing when the statement of the grounds of contest is in the language of the statute. McDonald v. McDonald, 142 Ind. 55, 64, 41 N. E. 336.

In the instant case the pleaded facts relied on by the complainants are well within the law affirmed by the case last cited. The motion was properly overruled.

[3] Passing to appellant's second assignment, the record shows that the jury returned its verdict on June 9, 1916. On June 22d, defendants, in writing, filed what they called a motion in arrest of judgment, which was thereupon overruled, and judgment on the verdict in favor of plaintiffs. On July 1st defendants...