Smith v. Farr

• Decision Date: 17 June 1927
• Docket Number: 12,742
• Citation: 157 N.E. 111,88 Ind.App. 237
• Parties: SMITH ET AL. v. FARR ET AL
• Court: Indiana Appellate Court

157 N.E. 111

88 Ind.App. 237

SMITH ET AL. v. FARR ET AL

No. 12,742

Court of Appeals of Indiana

June 17, 1927

Rehearing denied October 26, 1927. Transfer denied November 16, 1928.

From Grant Circuit Court; J. F. Charles, Judge.

Action by Virgil Farr and others against George Smith and others to contest a will. From a judgment for plaintiffs, the defendants appeal.

Affirmed.

George G. Wharton, Oren Dickey and Condo & Batton, for appellants.

Emshwiller & Emshwiller and John R. Browne, for appellee.

NICHOLS J. Dausman, J., absent.

OPINION

NICHOLS, J.

This is an action brought by appellees, three of the four children of Henry Smith, deceased, against appellant George Smith, the other child of said Henry Smith, deceased, and Van Buren State Bank, administrator with the will annexed of the estate of Henry Smith, deceased, in one paragraph of complaint to set aside the last will and testament of said Henry Smith deceased. Appellants each separately filed an answer in general denial.

The cause was submitted to a jury for trial upon the one paragraph of complaint and the general denials, the jury finding for appellees, setting aside the probate of said will and declaring the same to be invalid, null and void, and that the same, with the probate thereof, should be set aside. The jury also returned with its general verdict answers to interrogatories which were submitted to the jury by the court, which interrogatories and the answers thereto transformed to narrative form and classified are, in substance, as follows: That John T. Strange, an attorney, on April 4, 1922, with his stenographer, Anna Dritzler, went to the residence of Henry Smith; that on said date said testator signed his will in the presence of said attorney and Anna Dritzler, and that said attorney and said Anna Dritzler signed and witnessed the same in the presence of said testator; that said testator on said date did not have mind and memory enough to know the deserts of his children; that on said date he did not know the value of his property; that said testator on said date did not have mind and memory enough to know who his wife and children were; that on said date he did not know and understand the business he was engaged in when said will was prepared and executed; that the will in controversy did not give and dispose of testator's property to the persons named in said will in accordance with his wish and desire; that such will was not the free act and deed of the testator; that said testator on said day did not know what property he owned, and to whom he wanted to give it; that said testator did not execute the will in question in accordance with his own wish and judgment; that said will was duly probated in the Grant Circuit Court. And that there was no evidence nor supporting evidence as to the age of Henry Smith, April 4, 1922; nor that, prior to April 4, 1922, Henry Smith requested someone to have attorney John T. Strange come to his residence for the purpose of making a will; nor that said attorney was on said day any relation to said testator nor that he had any interest in him other than as his attorney; nor that said testator advised said attorney as to how he desired to will his property; nor that on said date said attorney prepared said will as directed by said testator; nor that, after said will was prepared, it was read over to said testator; nor that said testator told said attorney to whom he desired his property to go; nor that on said date the testator desired and intended his property to belong to his wife during her lifetime with the right to use all of the personal property as necessary and at her death to be divided among his children as set forth in the will.

Thereupon, appellants filed a joint and several motion before the discharge of the jury requesting the court to resubmit to the jury the interrogatories for more definite answers thereto, which motion the court overruled. Appellants each filed separate motions for judgment on the answers of the jury to the interrogatories and also separate motions for a new trial of said cause, each of which said motions was overruled by the court, and judgment was rendered on the verdict, from which this appeal, the errors assigned relating to the court's action in overruling the separate and several motions of appellants for a new trial, in overruling the separate and several motions of appellants to require the jury to return to its juryroom and answer more definitely, specifically, separately and severally, each of the interrogatories propounded to it, and in overruling the separate and several motions of appellants to render judgment upon the answers of the jury to the interrogatories in their favor.

Appellants, in their points and authorities, have predicated error upon the court's action in sustaining appellees' respective objections to certain questions propounded by appellants to witnesses, and in overruling appellants' respective objections to certain questions propounded by appellees to witnesses. But we do not find these questions and their answers, or offers to prove, or the objections made by appellants thereto, together with the reasons for such objections, anywhere in appellants' statement of the record. Not being advised as to appellants' reasons for the objections made at the time, or as to appellants' offer to prove, we are unable to say as to whether there was error in the court's respective rulings. We may say, however, that, from what appears in appellants' points and authorities, the court committed no error in its respective rulings as to the admissibility of evidence.

Appellants complain of the court's instruction No. 2 which informed the jury that so much of the original complaint as charged that the pretended will was executed through undue influence had been withdrawn and was then withdrawn from the jury's consideration, contending that the record wholly failed to show that the part of plaintiff's complaint alleging undue influence had been withdrawn. But by writ of certiorari, appellees bring into the record the complaint as amended by striking therefrom the element of undue influence. While there was no record then made of the fact of such amendment, the statement in appellees' application for the writ of certiorari that the issue of undue influence had been stricken out and withdrawn from appellees' complaint during the trial of the cause, by leave of court, and the case submitted to the jury soley upon the question of unsoundness of mind, was unchallenged by appellants and a corrected copy of the complaint in response to the writ of certiorari shows such to be the fact. ...