Stevens v. Leonard

Citation56 N.E. 27,154 Ind. 67
Decision Date24 January 1900
Docket Number18,756
PartiesStevens et al. v. Leonard, Executor, et al
CourtIndiana Supreme Court

From the Lake Circuit Court.


N. L Agnew, D. E. Kelly, E. D. Crumpacker and J. B. Peterson, for appellants.

A. C Harris, A. D. Bartholomew, J. W. Youche, B. K. Elliott, W. F Elliott and F. L. Littleton, for appellees.


Dowling, J.

Joseph Leonard died June 5, 1895, leaving no wife or child. His heirs at law were his three brothers, James, Alvah, and John, and the children of a deceased sister, to wit, Lewis W. Stevens, William Stevens, Clara DeMotte, Eva Finney and Elizabeth Finney. On the 10th day of June, 1895, a paper purporting to be the last will of the said Joseph Leonard, bearing date of December 13, 1888, was presented to, and admitted to probate in, the Porter Circuit Court, of Porter county, Indiana, which was then in session. Afterwards, on the 25th day of March, 1896, the appellants filed their complaint to contest the said will, alleging unsoundness of the mind of the said Joseph Leonard, and the undue execution of the will. There was a further allegation that a subsequent will had been executed by the said Joseph Leonard revoking the former will, but this ground was abandoned by the contestors and requires no further notice. The statutory requirements as to the verification of the complaint, and the execution of an undertaking for costs were complied with. The appellees appeared and answered. After the commencement of the action, John Leonard, one of the brothers, died, and John Brodie, as the administrator of his estate, together with the widow and children of the said John Leonard were by a supplemental complaint, made defendants in the place of the said John. On the application of the appellants, the venue of the cause was changed to Lake county, the case was tried by a jury, and a general verdict was returned sustaining the will. A motion for a new trial was overruled, and the court rendered judgment on the verdict. The only error assigned is the overruling of the motion for a new trial.

The first cause for which a new trial was claimed was that the verdict was contrary to the evidence; and the second, that the verdict was not sustained by sufficient evidence. The latter is the proper and statutory cause for which a new trial may be demanded, and, when stated, it is not necessary to allege that the verdict is contrary to the evidence. A verdict which is contrary to the evidence is correctly described in the motion for a new trial in the language of the statute, as not sustained by sufficient evidence.

The first proposition in the argument for the appellants is that Joseph Leonard made his will under a delusion concerning the character and conduct of his brother Alvah. The complaint and answer made the question of the soundness or unsoundness of the mind of Joseph Leonard, at the time of the execution of the will, an issue in the cause. Hundreds of pages of evidence in the record exhibit the conflicting facts and opinions of the witnesses called to support, and to combat, the averment of mental infirmity. The question tried and determined by the jury was not whether Alvah Leonard was a rogue, a hypocrite, and a cheat, nor whether the aversion manifested by Joseph Leonard toward his sister's children was justifiable, or well or ill-founded, but whether Joseph was of sound mind when he executed his will. To maintain the issue on the part of appellants, the manifestation of bitter and unnatural sentiments by Joseph Leonard against his brother Alvah was shown, and there was evidence of expressions of unkind feeling toward his sister's children. But this proof was met by testimony, that these sentiments and feelings were not the result of insane delusions, but that they had their origin in real grievances, and apparent slights. The existence of intense and implacable resentments is not incompatible with entire soundness of understanding; and trivial instances of disrespect may create aversion and dislike in a mind which is either sensitive or exacting and imperious. All these facts were before the jury, and, after long deliberation, they arrived at the conclusion that Joseph Leonard was not of unsound mind when he made his will. In our opinion, the evidence entirely fails to show that the feelings of Joseph Leonard toward his brother Alvah, and the children of his deceased sister, were the result of insane delusions or hallucinations. The deceased was evidently a man of coarse but vigorous mind, of strong will, illiterate, and unrefined. His prejudices were violent, perhaps unjust and excessive, but we find no support in the evidence for the allegation of the complaint that his mind was unsound, and that he was incapable of disposing of his estate by will. It is not within the province of this court to weigh the evidence, and even where the preponderance against the finding or verdict is apparent and great, we cannot, under the oft repeated rule of decision by which we are governed, disturb the conclusions of the court or jury. The circumstance that the supposed testator was, at the time of the execution of the will, suffering from acute pain, did not take away his testamentary capacity. Torrey v. Blair, 75 Me. 548. The evidence, in our opinion, fully sustains the verdict, and the court did not err in refusing to grant a new trial on account of the alleged insufficiency of the proof.

The appellants next complain that the court erred in giving instruction numbered one, which was in these words: "There is no evidence to show that the testamentary instrument in question was not, in the matter of forms gone through with, in all respects duly executed. I do not withdraw from your consideration, if you deem it important, any proof as to the extraneous influences, if any, which operated on the mind of the testator, if they did so operate, but, upon the condition of the evidence in this case, I instruct you that such influences, if any, can only be considered upon the question as to whether the testator was of unsound mind. There is, therefore, but one ultimate question for your consideration under the facts in this case, and that is, was the testator at the time he signed the testamentary disposition of his property, now in contest, so far of unsound mind as to invalidate the document which has been probated as his will?"

Counsel say in their brief: "Of course, it is at once to be perceived that this instruction takes out of the record, as it is intended to do, the question of undue influence. This was a question upon which the appellants relied, and now insist that the court erred in withdrawing the question from the jury. The same question is presented in instruction number ten, asked for by the appellants (page sixty-one of the record) which is as follows: 'If you believe from the evidence that at the time of making the will in question, and for several years prior thereto, Joseph Leonard was in poor health, and in a condition of nervousness and excitability, and if you further believe that during that time James Leonard, one of the defendants, took advantage of his enfeebled condition, and by words and insinuations poisoned the mind of the said Joseph Leonard against his brother Alvah, to such an extent that said Joseph possessed an intense hatred of his said brother, and was induced by said hatred to give all his property to James and his family by will, said will is invalid and should be set aside.'"

If there was evidence that the execution of the will was procured by the exercise of undue influence, then the instruction given was erroneous, because it withdrew from the consideration of the jury that element of the case. If there was no evidence of undue influence, the direction of the court was right. The burden of proof was upon the appellants, and, if the evidence in the cause entirely failed to sustain any one of the grounds upon which the validity of the will was assailed, the court had the right to withdraw the consideration of such ground, and to instruct the jury to disregard it. Faris v. Hoberg, 134 Ind. 269, 33 N.E. 1028; Ohio, etc., R. Co. v. Dunn, 138 Ind. 18, 36 N.E. 702; Palmer v. Chicago, etc., R. Co., 112 Ind. 250, 14 N.E. 70.

It is necessary, therefore, to ascertain what constitutes undue influence within the meaning of the law, and then to determine whether there was any evidence of such undue influence before the court and jury. "Undue influence has been defined, as that which compels the testator to do that which is against his will, through fear, or the desire of peace, or some feeling which he is unable to resist, and 'but for which the will would not have been made as it was.'" Redfield Law of Wills (4th ed.), p. 530; 27 Am. & Eng. Ency. of Law, p. 495, and notes. Again, it is said that, "the influence must be undue, in order to vitiate the instrument, because influences of one kind or another surround every rational being, and operate necessarily in determining his course of conduct under every relation of life. Within due and reasonable limits such influence affords no ground of legal objection to his acts. Hence mere passion and prejudice, the influence of peculiar religious or secular training, of personal associations, of opinions, right or wrong, imbibed in the natural course of one's experience and contact with society, cannot be set up as undue to defeat a will, if indeed, it were possible to gauge the depth of such influences at all. 'It is extremely difficult,' as Lord Cranworth has observed, 'to state in the abstract what acts will constitute undue influence in questions of this nature. It is sufficient to say, that, allowing a fair latitude of construction, they must range themselves under one or other of these...

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    ...the witness to satisfy himself of the competency of the party before he lends his name to attest the act.' In Stevens v. Leonard, 154 Ind. 67, 56 N.E. 27, 31, 77 Am.St.Rep. 446, the Court 'It cannot be thought possible that an honest man, of ordinary intelligence, would subscribe his name a......
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