Rarick v. Ulmer
| Decision Date | 19 February 1896 |
| Docket Number | 17,257 |
| Citation | 42 N.E. 1099,144 Ind. 25 |
| Parties | Rarick et al. v. Ulmer, by Next Friend |
| Court | Indiana Supreme Court |
From the Kosciusko Circuit Court.
The judgment is reversed and the cause remanded with instructions to sustain the motion for a new trial.
Widaman & Frazer, for appellants.
H. S Biggs and L. W. Royse, for appellee.
The appellee sued the appellants to contest the will of Andrew Rarick, deceased. The issues were tried by a jury resulting in a verdict for the plaintiff, appellee, upon which the court rendered judgment over appellant's motion for a new trial setting aside the will.
Error is assigned on the action of the trial court in overruling the motion for a new trial.
The principal ground relied on in the motion is that the evidence does not support the verdict.
The evidence shows that appellant was the widow of the testator and that she was a second wife and childless and that she and a number of his children by a former marriage and one grandchild, the appellee, a child of his deceased daughter survived him; that appellant had lived with him some twentyfive years previous to his death; that he died seized of about four hundred acres of land in Kosciusko county, and left personal property of the value of $ 2,500 to $ 3,000 that by his will in question he gave his said wife appellant, a life estate in eighty acres of land and all the personal property mostly consisting of promissory notes.
The real estate was fairly and equitably divided between his living children, but to his grandchild, the appellee, he gave only five dollars.
The charge in the complaint was that the will was procured by undue influence exerted by the appellant on the testator and that he was of unsound mind when the will was executed.
There are hundreds of pages of evidence in the transcript totally irrelevant to the issues, though there is now and then a stray item that is pertinent to the issues. Most of this irrelevant testimony seems to have gone in without an objection or exception. But when objection to such evidence was made it was always overruled. Irrelevant evidence is very different from incompetent evidence, especially where it has been admitted without objection.
Incompetent evidence thus admitted may be sufficient to establish a fact or facts in issue and if so there could be no reversal on the ground that the issue had been maintained by incompetent evidence. For want of an objection to its competency that objection is waived. For instance, oral evidence of the contents of the written instrument sued on in a given case may be introduced if no objection is made. No reversal could take place because that evidence may prove the contents of the instrument as thoroughly as the instrument itself. Not so if the evidence given and unobjected to, is totally irrelevant to the issue; for instance, instead of relating to the contents of the instrument sued on, if it had been to the effect that the moon is or is not made of green cheese. Such evidence, though admitted without objection, is not only irrelevant, but it does not prove the contents of the written instrument sued on and cannot support a verdict. Such is the nature of much the greater part of the vast volume of the evidence in this case.
The appellee's relevant evidence shows that Andrew Rarick, the testator, was a well to do farmer of more than ordinarily strong mind; that he was a good citizen, a dutiful and kind father and husband; that the appellee, a mere child at the time of the trial, was the only surviving child of his youngest daughter; that the daughter had married much against his will because he did not like the man she married; that the appellee was the first and only child of that marriage, her mother dying while she was a mere babe; that her father immediately sent her off to his father in the State of Missouri where she has ever since resided. Her father, Ulmer, remained in Indiana and two or three years thereafter married again.
The evidence further showed that some eight or ten years before his death the testator became afflicted with a cancer in his face. The ravages of the disease were steady and progressive so that in the last five or six years of his life he was a great sufferer therefrom, requiring the constant attention of his wife to keep the running ulcer in his face cleaned and dressed, which had to be done at least twice a day. During all the time and in spite of all efforts to avoid it, there was an almost unbearable odor created in the room, which she patiently endured and uncomplainingly and with her own hand tenderly ministered to his every want to the very last. This disease gave rise to the charge of unsoundness of mind and these kind offices of the appellant presumably induced the charge of undue influence, for there is not a scintilla of other evidence that has the slightest bearing on the charge of undue influence. See Goodbar v. Lidikey, 136 Ind. 1. (43 Am. St. R. 296, 35 N.E. 691).
The evidence shows that at the time the will was executed, the disease had destroyed the sight of one of his eyes and had to some extent impaired the sight of the other. In this condition, however, he had made several visits to Ohio and on the day the will was made went to the county seat, some seven miles from his home, his wife accompanying him on each occasion. But on the day the will was made after reaching the public square he went alone to the court house in search of Judge Haymond, since elected regular judge, whom he desired to write his will, found him, made known his business and Judge Haymond prepared the will solely on the directions and statements and requests made by the testator with no one present who had any interest in the matter.
From these facts and from his acquaintance with the testator for about thirty years he stated it as his opinion that the testator on that day was of sound mind.
The appellee's testimony as to testamentary capacity is all made up of statements of witnesses describing the disease with which the testator was afflicted, the great suffering and pain he endured therefrom and the testator's own statements that he was not fit to do business, and to this the witnesses for the appellee sometimes added their own opinion that he was not fit to do business. The only business he had to do of any consequence was lending a little money to his neighbors,...
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