Ramseyer v. Dennis

• Decision Date: 31 May 1918
• Docket Number: No. 22986.,22986.
• Citation: 119 N.E. 716,187 Ind. 420
• Parties: RAMSEYER et al. v. DENNIS et al.
• Court: Indiana Supreme Court

187 Ind. 420

119 N.E. 716

RAMSEYER et al.

v.DENNIS et al.

No. 22986.

Supreme Court of Indiana.

May 31, 1918.

Appeal from Circuit Court, Howard County; H. C. Purdum, Judge.

On petition for rehearing. Petition overruled.

For former opinion, see 116 N. E. 417.

James C. Blacklidge and Wolf & Barnes, all of Kokomo, for appellants. McConnell, Jenkines, Jenkines & Stuart, of Logansport, and Byers & Broo and Morrison, McClure & Roll, all of Kokomo, for appellees.

MYERS, J.

On petition for a rehearing appellants have favored us with an earnest and able brief to sustain their views on the questions involved in this appeal. First, our attention is called to matters sought to be presented, but not considered in the opinion; second, that other questions were erroneously decided. We did omit to notice some of the alleged errors argued by appellants in the belief that neither of them would warrant a reversal of the judgment, and because the questions decided seemed to be all that were really debatable. Moreover, the unnoticed questions on the evidence, strictly speaking, were not properly presented.

The learned counsel for appellants know that it has been affirmed and reaffirmed many times by this court, and the Appellate Court, that rule 22 (55 N. E. v) requires briefs to be so prepared that each member of the court may pass upon each question relied on without looking to the record. Chicago, etc., R. Co. v. Wysor Land Co., 163 Ind. 288, 294, 69 N. E. 546;Price v. Swartz, 49 Ind. App. 627, 97 N. E. 938;Chicago, etc., R. Co. v. Newkirk, 48 Ind. App. 349, 93 N. E. 860;Repp v. Indianapolis, etc., Trac. Co., 184 Ind. 671, 111 N. E. 614.

For instance appellants complain of the ruling of the trial court in admitting certain evidence, but in their brief they fail to set out the objections urged to the trial court, and seem to be content with referring this court to the page and line of the record containing more than 1,400 pages, where the objections so made may be found. Without the record it would be impossible to know the character of the objections, or the reasons assigned for excluding or admitting certain evidence. But in view of the zealous insistence of counsel, and on the theory that counsel have made a good-faith attempt to comply with the rules, we have taken the time to examine the record in the particular instances, and will pass on these questions.

Appellants submitted 21 interrogatories and appellees 19, all of which were answered by the jury. It is conceded that all answers harmonize with the general verdict. The point is made that the interrogatories submitted by appellees “did not ask the jury to find specially upon particular questions of fact, but called for mere matters of evidence.” Appellants then insist that by this means the jury was misdirected and misled as to the issue it was called upon to try, and also influenced, controlled, and guided to return an erroneous verdict.

[1] As circumstances bearing upon a testator's mental condition or testamentary capacity at the time of making his will, evidence is admissible tending to show the amount, situation, condition, and value of his property, the number and names of his children or persons who are the objects of his bounty, the treatment of such persons toward the testator and his treatment of them, or the relations existing between them, that he could keep in mind such facts, and the manner in which his property was to be distributed, and to whom, and capacity to comprehend the nature of the business in which he was engaged. Ditton v. Hart, 175 Ind. 181, 93 N. E. 961;Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118; Staser v. Hogan, 120 Ind. 207, 216, 21 N. E. 911, 22 N. E. 990; Kentworthy v. Williams, 5 Ind. 375;Brelsford v. Aldridge, 42 Ind. App. 106, 84 N. E. 1090;Dunaway v. Smoot, 67 S. W. 62, 23 Ky. Law Rep. 2289; Howard v. Coke, 46 Ky. (B. Mon.) 655.

[2] Thus it will be seen that the field of investigation in such cases takes in a wide range, largely within the discretion of the trial court. Remsen on Preparation and Contest of Wills, p. 380; Barbour v. Moore, 4 App. D. C. 535;Barbor v. Moore, 10 App. D. C. 30, 45;In re Mason's Will, 82 Vt. 160, 72 Atl. 329. Consequently the bounds of interrogatories are only limited to findings less than an issue, and of greater dignity than evidence. Our Code (section 572, Burns 1914) provides that the jury may be required to “find specially upon particular questions of fact,” thereby intending such findings shall be less than an issue, yet material and substantive facts. Manning v. Gasharie, 27 Ind. 399, 409;Gates v. Scott, 123 Ind. 459, 24 N. E. 257;O. M. Cockrum Co. v. Klein, 165 Ind. 627, 74 N. E. 529;Ft. Wayne Cooperage Co. v. Page, 170 Ind. 585, 84 N. E. 145, 23 L. R. A. (N. S.) 946.

[3] Looking to the interrogatories before us, 9, 10, and 11, calling for the specific declarations of William A. Tate before and after the time of making his will were clearly improper, for the reason they call for matters of evidence.

[4] No. 16, as to whether William A. Tate appreciated and understood the legal effect of the paper purporting to be his will, was not a proper interrogatory. Ditton v. Hart, supra, 175 Ind. 186, 93 N. E. 961.

[5] The remaining interrogatories, 15 in number, referring to William A. Tate owning 80 acres of land, and personal property, on the date he made his will, September 19, 1895, and to him as being the father of appellees, children by his first marriage, of whom the three sons remained at home on said land and helped to cultivate and improve it until they were 21 years of age, the value of the land at the time of the trial, the time, 3 1/2 hours, required in the preparation of the will, and during that time he made no mention of any of his children, or spoke of their deserts or treatment toward him, that these children at all times had been considerate and respectful of their father, who had expressed great love and affection for them before September 19, 1895, and thereafter until the time of his death, were not all objectionable. Ten of these interrogatories were properly submitted, while the others cannot be approved, yet when all are considered in connection with those asked by appellants and the answers thereto, which showed beyond question testamentary incapacity, we must conclude that appellants' contention cannot be sustained. The interrogatories which we do not approve did not affect the others to the extent of making them all vicious, nor were they, within themselves, of that importance as to influence the jury to an erroneous verdict.

We will next consider the rulings of the court on the admission of testimony. A non-expert witness first testified to an acquaintance with the testator covering the last six or seven years of the latter's life, and to having nursed him while ill in the fall of 1913 for about six weeks, and again for about that length of time immediately before his death. He was then asked to detail various conversations had between them. During the course of his examination along this line, over appellant's objection on the ground that the question called for declarations of the testator which were not relevant to the issue and were too remote, and after counsel for appellees stated that their purpose was to qualify the witness for an opinion as to the mental condition of the testator, he was allowed to answer that during one of these conversations in 1913 the testator said that his stepson was a snake in the grass, and by some trick or turn was after his children's property. In other conversation Tate said that he was thankful that he had made his will so that his children would get all that belonged to him. In another that he had acquiesced in Mrs. Tate's children having all her property, and he wanted his property to go to his children.

[6] These statements were voluntarily made in the course of various conversations and to one not interested in the testator's estate. In this connection our attention has been called to Runkle v. Gates, 11 Ind. 95,Vance v. Vance, 74 Ind. 370, and McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336, where it is held that statements of a testator are not admissible in actions of contest upon the ground of fraud or undue influence. The basis for this ruling does not obtain where the contest is upon the ground of unsoundness of mind, for the reason that in the former class of cases the declarations or statements are used as direct proof of the fact of fraud or undue influence, or as proof that the fact asserted did occur, and are inhibited by the hearsay rule, unless admitted as part of the res gestæ; while the latter class of cases involves a consideration of many circumstances from which the ultimate fact may be inferred. Consequently, on the ground of necessity, the courts have recognized and adopted an exception to the hearsay and remote rule, which permits all utterances and conduct of the testator to be brought to the attention of the court or jury trying the issue, not for the purpose of proving the truth of the particular declarations or statements, but from them the condition of the testator's mind at various times for use as a basis for inferring his condition at the time the instrument was executed. Under the exception noted, and for the purpose stated, the conduct of the testator may be shown before and after the testamentary act. Bower v. Bower, 142 Ind. 194, 41 N. E. 523; In re Estate of Wharton, 132 Iowa, 714, 109 N. W. 492; Watson v. Anderson, 11 Ala. 43; Spencer v. Terry's Estate, 133 Mich. 39, 94 N. W. 372; 1 Alexander on Wills, § 361; Haines v. Hayden, 95 Mich. 332, 346, 54 N. W. 911, 35 Am. St. Rep. 566.

One reason for this rule, as said in the case last cited, is that “it very rarely occurs that this state of mind can be shown by declarations made at the very moment of the execution of the will.” But the exact time which may be covered by either of these periods is largely within the discretion of the...