Staser v. Hogan

• Decision Date: 08 June 1889
• Docket Number: 14,587
• Parties: Staser et al. v. Hogan et al
• Court: Indiana Supreme Court

21 N.E. 911

120 Ind. 207

Staser et al. v. Hogan et al

No. 14,587

Supreme Court of Indiana

June 8, 1889

Reported at: 120 Ind. 207 at 225.

From the Posey Circuit Court.

Judgment affirmed.

A. C Tanner, W. W. Ireland, J. S. Buchanan, C. Buchanan and W. E Niblack, for appellants.

G. V. Menzies, D. B. Kumler and J. E. McCullough, for appellees.

OPINION

Coffey, J.

This action was commenced by the appellees against the appellants in the circuit court of Vanderburgh county, to contest and set aside the will of John C. Staser, deceased. There are four causes for contest alleged, viz.:

1st. That the said John C. Staser was of unsound mind at the time he executed the will.

2d. That said pretended will was not the will of the said John C. Staser.

3d. That said pretended will was unduly executed.

4th. That said will was procured by the undue influence of the defendants, Clinton Staser, Clara Staser, his wife, and others to the plaintiffs unknown.

The cause was venued to the Posey Circuit Court, where the same was put at issue by a general denial of all the defendants. The cause was tried by a jury who returned a general verdict for the appellees. In addition to the general verdict the jury returned answers to interrogatories. Over a motion for a new trial, the court rendered judgment on the verdict, setting aside the will in controversy, and defendants below appeal to this court and assign as error:

1st. That the complaint does not state facts sufficient to constitute a cause of action.

2d. No paragraph of the complaint states facts sufficient to constitute a cause of action.

3d. The court erred in overruling the defendants' demurrer to the first and second paragraphs of the complaint, and to each of them.

4th. The court erred in refusing to require the jury to answer more fully and specifically interrogatory No. 22, which had been submitted to them for answer.

5th. The court erred in overruling the defendants' motion for a new trial.

6th. The court erred in overruling the defendants' objection to Hon. R. D. Richardson's hearing and passing upon defendants' motion for a new trial.

7th. The court erred in overruling the defendants' objection to Hon. R. D. Richardson's rendering judgment upon the verdict herein and in rendering said judgment.

8th. The court erred in overruling defendants' objection to Hon. R. D. Richardson's making any order in this cause at the January term, 1888, of the Posey Circuit Court.

9th. The court erred in overruling defendants' objection to the appointment of Hon. R. D. Richardson as special judge in this cause at the January term, 1888, of the Posey Circuit court, or to the said Richardson making any order herein at said term.

In the brief of the appellants, no objection to the complaint is pointed out or discussed. The first, second, and third assignments of error must, therefore, be deemed waived.

The fourth is an alleged error occurring on the trial, and was proper matter to be assigned for a new trial, but can not be assigned as error in this court. Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551; West v. Cavins, 74 Ind. 265; Ogle v. Dill, 61 Ind. 438; Patterson v. Lord, 47 Ind. 203.

Many reasons were assigned by the appellants for a new trial, which we will consider in the order in which they are set forth in the motion.

The first and second reasons assigned for a new trial are, that the verdict of the jury is not sustained by sufficient evidence, and that the verdict is contrary to law.

There is evidence in the record which tends to support the verdict of the jury, and while there may be a seeming preponderance of the evidence in favor of the appellants upon the issues joined, for the many good reasons given in the adjudicated cases, we are not at liberty to disturb the verdict for that reason. The weight of the testimony is for the jury. So well is this rule settled, and so well is it understood, that we deem it unnecessary to cite authorities.

The third and sixteenth causes assigned for a new trial, involve the same legal question and are discussed in the briefs of counsel together, and it is not, therefore, improper to consider them without separation. They seek to raise the question of the competency of Mrs. Hogan, one of the legatees under the will of the deceased, to testify in the cause. It is urged on behalf of the appellees that the objection to the admissibility of the testimony given by this witness was not of such a character as to reserve the question sought to be raised here, and that the motion for a new trial was so indefinite that it does not present the question of the competency of Mrs. Hogan as a witness.

The record discloses the fact that the appellees called Catharine Hogan, one of the plaintiffs below, and one of the appellees here, as a witness, and propounded to her this question: "Where was your father born?"

The appellants interposed the following objection: "We object to the witness as being incompetent except to testify to the testamentary capacity of the testator."

The objection was overruled, and the appellants excepted. The appellants, by their counsel, then stated to the court that they "objected and excepted to everything except that which conduces to show the testamentary capacity of the testator; in other words, that which may be proven by the heirs, and nothing else, and the exception to embrace everything the witness may say that does not conduce to show mental capacity, or the want of it, on the part of the testator."

The objection being overruled by the court, the witness was permitted to detail the history of the births, marriages, and deaths of the family of the deceased testator.

At a subsequent period in the trial, the record shows that this witness was again called as a witness on behalf of appellees, and before any question had been propounded to her the appellants stated to the court: "The defendants object to this witness testifying to anything that occurred prior to the death of the testator, and to all communications, except upon the questions and conversation that tend to prove the mental capacity of the decedent, and we object to her testifying to any act or conversation of any of the devisees, for the reason that the statements of one devisee can not be used either for or against the will; and to save time, and not take up time unnecessarily, this objection to apply to all that this witness may say, as well as to other devisees or heirs," which objection the court overruled, and the appellants excepted.

The witness then testified: "I gave my age the other day. I was raised on the homestead, and lived (there) till I was married. While there I helped to do the work in the house, helped the boys in the field, and helped my father in the field."

The record states that "the defendants object, because she is an incompetent witness on that subject, and they objected to this answer, and all other questions and answers heretofore made by her not tending to show the sanity or insanity of Mr. Staser. On all other matters she is incompetent under the statutes, and to save time we make the same objections to all other questions not in relation to the mind of decedent hereafter to be asked."

The objection was overruled, and excepted to, and the witness then testified generally in relation to her connection with the family of the deceased before her marriage; to the conduct of, and conversations with, the deceased with a view of giving her opinion as to the condition of his mind at the time of the execution of the will in controversy, as well as to matters which occurred since the death of the testator.

The third cause assigned for a new trial is as follows:

"3d. For error of law occurring at the trial, and excepted to at the time, by the defendants, in this, to wit, in admitting in evidence and permitting Catharine Hogan, a witness produced and sworn by the plaintiffs, to testify as follows."

Then follows all the testimony of Catharine Hogan when first on the witness-stand, followed by this language: "The testimony of Catharine Hogan, she being a daughter of deceased, John C. Staser, his heir and devisee in his will (is), therefore, incompetent under the statute to such facts, and is also a party plaintiff."

The sixteenth reason assigned for a new trial is as follows:

"16. In admitting in evidence, and permitting Kate Hogan, a witness offered by plaintiffs, to give the following testimony."

Then follows all the testimony given by the witness when on the witness-stand the second time, and this reason concluding as follows: "Such testimony being incompetent, immaterial, and irrelevant, she being a daughter of John C. Staser, a devisee under his will and a party to this suit, being incompetent under the statute to testify to such facts, is further incompetent, immaterial, and irrelevant for the reason that it details a conversation about Clara Staser, who is not a party to the suit or heir of the testator or devisee under his will."

Section 496, R. S. 1881, makes all persons, whether parties to, or interested in, the suit, competent witnesses in civil actions or proceedings, except as otherwise provided by statute. Section 499 provides that in all suits by or against heirs or devisees, founded on a contract with, or demand against, the ancestor, to obtain title to or possession of property, real or personal, of or in right of such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor.

In the case of Lamb v. Lamb, 105 Ind. 456, 5 N.E 171, it was settled that, in a proceeding like this to contest a will, the heirs and devisees are competent witnesses as to the mental...