Stamets v. Mitchenor
| Decision Date | 12 October 1905 |
| Docket Number | 20,472 |
| Parties | Stamets et al. v. Mitchenor et al |
| Court | Indiana Supreme Court |
Rehearing Denied January 4, 1906.
From Dekalb Circuit Court; William M. Brown, Special Judge.
Action by Zenith Stamets and others against Benjamin Mitchenor and others. From a judgment for defendants, plaintiffs appeal.
Affirmed.
P. V Hoffman and J. E. Rose, for appellants.
J. E Pomeroy and E. V. Harris, for appellees.
This action was brought by appellants to resist the probate of the will of Ann Maria Stamets, on the ground that said will was executed by the testatrix while of unsound mind, and that the execution of the same was procured by fraud and undue influence. The cause was tried by a jury, and resulted in a verdict for appellees. Appellants' joint motion for a new trial was overruled, and they severally excepted. Judgment was entered upon the verdict. All questions upon appeal are presented by the joint assignment that the court erred in overruling appellants' motion for a new trial.
Appellees insist that a joint assignment of error, based upon several exceptions to the ruling upon the motion for a new trial, presents no question. If separate motions for a new trial had been filed, and exceptions to the court's rulings thereon taken by appellants severally, it is well settled that appellants could not join in assigning such error in this court. In this case appellants all joined in the motion for a new trial, and all excepted to the ruling thereon, but the record indicates an attempt to sever in reserving such exception. The assignment of error is predicated upon a ruling procured by the joint act of all the appellants, and a decision which affected in like manner all their rights and interests, and to which they all, though severally, excepted. These facts distinguish this case from those cited and relied upon by appellees, and in our opinion make the assignment of error sufficient. Orton v. Tilden (1887), 110 Ind. 131, 10 N.E. 936; Green v. Brown (1896), 146 Ind. 1, 44 N.E. 805.
The motion for a new trial was founded upon alleged errors of the court in giving instructions, in refusing to give instructions requested, and in permitting a witness for appellees to answer an improper question, and upon the alleged misconduct of a juror.
Appellees challenge the sufficiency of appellants' brief in various particulars. A strict application of the rules would probably exclude some points in dispute from consideration, but it is manifest that appellants have made a good-faith effort to comply, and have substantially complied with our rules in the preparation of their brief, and the defects suggested will be disregarded, without discussion in detail.
Preliminarily to a consideration of instructions given and refused, it is deemed proper to say that this action was brought only to resist the probate of a will. In the second paragraph of complaint a certain contract in writing made by the decedent is charged to be of testamentary character and executed with the formalities appropriate to a will, and its right to be admitted to probate as a will is denied on the ground of unsoundness of mind of the decedent, and because of fraud and undue influence in procuring its execution. The action was in no sense one to rescind, annul or cancel this contract. The test of mental capacity applicable to the decedent at the time of making her will and this testamentary contract, under the issues, was therefore that required of a testator, and not that applicable to a party to a contract inter vivos.
The only instructions given by the court of which complaint is made in appellants' brief under the head of points and authorities or in argument are numbers twenty-seven and thirty-four. The objections of appellants to all other instructions given must be regarded as waived.
Instruction number twenty-seven was as follows: "If you find from the evidence that the testatrix lived in the same dwelling-house with the defendants, and was under the care and protection of the defendants, and close, friendly and intimate relations existed between said parties when said will and contract were made, such facts of themselves, unaided by other evidence, I instruct you, afford no reason whatever for presuming that the execution of the will and contract were procured by undue influence." Instruction number thirty-four was to the same general effect. These instructions were clearly right. The mere existence of close and friendly relations between a testator and the objects of his bounty can not alone give rise to a presumption of undue influence. Such relations, especially when founded upon kinship, rather afford a natural and rational explanation of the generous provisions of a will made in favor of those who had won and held the affections of a testator in his lifetime. Goodbar v. Lidikey (1893), 136 Ind. 1, 43 Am. St. 296, 35 N.E. 691.
Appellants tendered a number of instructions to be given to the jury, all of which were refused by the court. The ground of the court's refusal is not made to appear. The special bill of exceptions recites that appellants "at the proper time drew up in writing and presented to the court instructions," etc. The statute requires a party requesting special instructions to present them to the court before the commencement of the argument. An appellant, complaining of the refusal to give instructions requested, must show affirmatively by the record that such instructions were tendered to the court in proper form before the beginning of the argument, to warrant this court in holding that such refusal was error. Puett v. Beard (1882), 86 Ind. 104; Craig v. Frazier (1891), 127 Ind. 286, 26 N.E. 842. The particular time in the progress of the trial at which such instructions were tendered should be made to appear as a fact, so that this court may be able to say whether they were presented within the time prescribed by law. Orton v. Tilden, supra. In this case we shall only express our disapproval of the use of the legal conclusion in lieu of the facts, and, in view of the conclusion reached, are not required to hold that the bill is insufficient in this regard.
The court, in a series of forty-one instructions informed the jury fully upon every phase of the law apparently applicable to the case. In these instructions the court defined, in terms approved by this court in a number of decided cases, the degree of mental capacity requisite to the making of a...
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