Rice v. Rice

• Decision Date: 30 March 1931
• Docket Number: No. 13854.,13854.
• Citation: 175 N.E. 540,92 Ind.App. 640
• Parties: RICE et al. v. RICE.
• Court: Indiana Appellate Court

92 Ind.App. 640

175 N.E. 540

RICE et al.

v.RICE.

No. 13854.

Appellate Court of Indiana, in Banc.

March 30, 1931.

Appeal from Adams Circuit Court, Jesse Sutton, Judge.

Action by Franklin Newton Rice against Jesse Alfred Rice, his brother, and others to set aside the will and codicil thereto executed by George W. Rice (their father), deceased, on the ground that the decedent, at the time said will and codicil were executed, was a person of unsound mind. From a judgment for plaintiff, defendants appeal.

Affirmed.

Leonard, Rose & Zollars, of Ft. Wayne, for appellants.

Aiken, Grant & Aiken, of Ft. Wayne, and Eichhorn, Gordon & Edris, of Bluffton, for appellee.

KIME, J.

Decedent, George W. Rice, died testate in January, 1925, leaving as his only heirs his widow, Melissa Rice, and two sons, Jesse Alfred Rice and Franklin Newton Rice. At the time of decedent's death, he was the owner of certain real and personal property of the probable value of $20,000. His will, which was executed in May, 1917, and a codicil thereto of September 18, 1920, was produced and probated in the Allen circuit court immediately after his death. By the terms of the will, the deceased bequeathed to his widow a life estate; to Jesse Alfred Rice, for and during the period of his natural life, a tract of land containing one hundred acres; to Charles J. Rice, a grandson of the decedent, all of the same land in fee simple upon the death of Jesse Alfred Rice; to Cora Ethel Rice, decedent's granddaughter, the east one-half of an eighty-acre farm; and to Florance M. Rice, another granddaughter, the west one-half of said eighty-acre farm. By the terms of this same will, Franklin Newton Rice, the plaintiff and appellee herein, was bequeathed the sum of $5. The original will named one William Wagner as executor, and the codicil was merely a reaffirmance of the will, with the exception of item 11 of said will, naming the said William Wagner as executor, which item was revoked, and one George Buskirk was named as executor. At the time the said will was admitted to probate, the said George Buskirk declined to accept the appointment, and Russell Buskirk was thereupon appointed administrator with the will annexed and qualified, to the approval of the court.

This action was commenced in March, 1925, in the Allen circuit court, and, upon a motion for change of venue by Jesse A. Rice, the case was transferred to the Adams circuit court.

[1] In August, 1926, decedent's wife, Melissa Rice, died intestate. Defendants, by their attorneys, filed a motion requesting that the court require the plaintiff to make the personal representative of said decedent (Melissa Rice) a party defendant to the action. This motion was overruled by the court. Appellates have assigned the overruling of this motion as error, but, inasmuch as they have failed to discuss or raise this question under their points and authorities, as required by clause 5, rule 22, of this court, we will consider this alleged error as being waived. Kaufman v. Alexander (1913) 180 Ind. 670, 103 N. E. 481.

Appellants have assigned the overruling of their motion for a new trial as error, and under this assignment have enumerated approximately 165 alleged errors of the trial court. Many of these causes are not presented for review, and are waived. The record and briefs in this case are very voluminous, but we have made a careful and thorough study of same, and will discuss only those points which we believe to be meritorious.

[2][3] Appellants contend that the decision of the court was not sustained by sufficient evidence, and the verdict is contrary to law.

A jury of twelve men believed from a mass of testimony offered, and drew a fair inference therefrom, that decedent was of unsound mind. At least fifteen lay witnesses testified, after detailing conversations, acts, conduct, business transactions, and describing his appearance, that in their opinion decedent was of unsound mind.

The Supreme Court, by Myers, J., has decided this so well that we adopt their language as applicable here:

“Appellants insist that the opinion of the witnesses could have no greater weight than the facts upon which it was based. That statement is correct, and the jury was so instructed, and we may add that the evidence to support the verdict is weak, but we cannot say as a matter of law that there is no evidence or inference to be drawn therefrom to sustain the verdict. When the question turns on the weight of the evidence, our judgment must give way to that of the jury. Danville Trust Co. v. Barnett (1916) 184 Ind. 696, 111 N. E. 429;Bever v. Spangler (1895) 93 Iowa, 576, 61 N. W. 1072.

“This court has held that we are not at liberty to wholly reject opinion evidence as to the mental condition of the testator at the time of making his will, for the reason that the witness may draw conclusions from the appearance and acts of a person which cannot be fully and accurately described in words but which are nevertheless a reliable basis for his opinion. Barr v. Sumner (1915) 183 Ind. 402, 411, 107 N. E. 675, 109 N. E. 193. As said in Connecticut Mutual Life Ins. Co. v. Lathrop (1884) 111 U. S. 612, 619, 4 S. Ct. 533, 28 L. Ed. 536: ‘The extent to which such opinions should influence or control the judgment of the court or jury must depend upon the intelligence of the witness, as manifested by his examination, and upon his opportunities to ascertain all the circumstances that should properly affect any conclusion reached.”’ Ramseyer, Ex'r v. Dennis (1918) 187 Ind. 420, 116 N. E. 417, 119 N. E. 716.

Appellants cite as error the admission of evidence of witnesses Wm. Wagner, Josiah Johnson, Lockwood, Studebaker, Sickler, Sommers, Sprang, and Platte, who, after relating various facts and incidents pertaining to the life of the decedent, George W. Rice, testified that, in their opinion, George W. Rice was of unsound mind, basing their opinion on the facts which they had testified to.

[4][5] Again the Supreme Court has answered:

“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 [1895] 142 Ind. 194, 41 N. E. 523; In re Estate of Wharton [1907] 132 Iowa, 714, 109 N. W. 492;Watson v. Anderson [1847] 11 Ala. 43;Spencer v. Terry's Estate [1903] 133 Mich. 39, 94 N. W. 372; 1 Alexander on Wills, § 361; Haines v. Hayden [1893] 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 trial court, or as sometimes said ‘that issue must, of necessity, evoke an inquiry of the broadest range.’ Bower v. Bower, supra, 142 Ind. at page 199, 41 N. E. 523; 1 Alexander on Wills, § 367; Moore v. McDonald [1887] 68 Md. 321, 339, 12 A. 117;Johnston v. Johnston [1912] 174 Ala. 220, 226, 57 So. 450;In re Estate of Lefevre [1894] 102 Mich. 568, 61 N. W. 3; Wigmore on Evidence § 233.

[6] “In cases like this it is now well settled that a nonexpert witness may express his opinion as to the mental condition of the testator after...