Sweeney v. Vierbuchen

• Decision Date: 29 May 1946
• Docket Number: 28192.
• Citation: 66 N.E.2d 764,224 Ind. 341
• Parties: SWEENEY et al. v. VIERBUCHEN et al.
• Court: Indiana Supreme Court

66 N.E.2d 764

224 Ind. 341

SWEENEY et al. v. VIERBUCHEN et al.

No. 28192.

Supreme Court of Indiana

May 29, 1946

Appeal from St. Joseph Superior Court; J. Elmer Peak Judge.

Warren J. Rommes, of Michigan City, and Walter R. Arnold and Arnold Degnan, Goheen & Zimmerman, all of South Bend, for appellants.

T C. Mullen, of Michigan City, and McInerny & Huguenard, of South Bend, for appellees.

STARR Chief Justice.

Appellees brought this action to contest the will of Anita Krueger deceased, and to set aside the probate thereof making defendants the appellants herein. From a verdict and judgment in favor of appellees this appeal is prosecuted.

The complaint was in one paragraph and among other things alleged that appellees were the sole heirs of decedent; that the appellant executor was an attorney at law; that he drafted the will of the deceased and at that time was her attorney and confidential advisor and had been for several months prior thereto, and continued to occupy that relation until the time of her death; that one of the two witnesses to the will was the wife of said executor; that the residuary legatees named in the will were the sons of said executor and said witness to the will; that at the time of the execution of the will testatrix was a confirmed and chronic alcoholic which condition continued until the time of her death; and finally, that said pretended will was unduly executed and was procured by undue influence. Appellants, by their answer to this complaint, admitted said executor had on occasions acted as counsel for testatrix but was without knowledge as to whether he had been her sole attorney. The answer also admitted that said executor drafted the will as attorney for and advisor to said deceased, and that one of the witnesses to the will was the wife of said executor, and the residuary legatees were the sons of said witness to the will and appellant executor. All other allegations in the complaint were denied. Later pleadings were filed which need not be set out for the purpose of this opinion.

Appellants have assigned as error the overruling of their motion for a new trial which challenges the giving and refusal of certain instructions.

The undisputed evidence in this case discloses that the appellant executor was an attorney at law; that he had been deceased's attorney and confidential advisor for several months prior to the execution of the will in question; that he prepared the will and it was executed in his home and in his presence and under his direction; that he took possession of it immediately and kept it until the death of deceased; that his wife was one of the witnesses to the same; that his two sons were the residuary legatees thereunder; that at the time of the execution of the will one of said residuary legatees was three years of age and the other six years of age. Appellees' evidence was to the effect that the deceased was a chronic alcoholic and had been during all the time that such appellant executor was her lawyer and advisor, and that she was in the habit of becoming intoxicated daily; that the total net estate was approximately $58,714.64 of which the residuary estate amounted to approximately $11,796.00. It also appears from appellants' evidence that the appellant executor and family, at all times herein mentioned, resided only a short distance from the home of testatrix; that they visited back and forth and occupied a very friendly social relationship; that appellant executor did not request nor did he hear anybody else request or suggest to the testatrix that she make a devise or bequest to his children; that testatrix had given him directions as to what should be put in the will and that he carried out precisely her instructions; and that deceased had possession of the instrument several days before she executed the same and lived several years after its execution. This was all the evidence upon which the issue of fraud or undue influence could have been based. There was no evidence offered or given in this case by either side, either directly or indirectly, aside from that we have herein set out bearing upon the professional conduct of the appellant executor in the preparation and execution of the will in question.

Appellants, by their motion for a new trial, insist that it was error for the court to give the plaintiffs' tendered Instruction No. 8. This instruction reads as follows:

'It was the duty of the Attorney Clarence T. Sweeney to serve his client Anita V. Krueger with undivided zeal and interest. The law means to keep attorneys from assuming positions where they may be tempted to prefer their own interests to those of their clients. The policy of the law is to prevent an attorney from sacrificing the interests of his client for his own gain or the gain of his family.

'Therefore, if you find from the evidence in this case that Anita V. Krueger was permitted by her attorney Clarence T. Sweeney to execute the instrument in question and if you further find that at the time of its execution she was ignorant of its nature or contents, or that she did not understand its nature or contents, or that she misapprehended its nature or contents, or was deceived or misinformed as to its contents, or if its nature or contents were not fully, correctly, and adequately explained to her by her...