Taylor v. Taylor
| Decision Date | 29 November 1910 |
| Docket Number | No. 21,399.,21,399. |
| Citation | 93 N.E. 9,174 Ind. 670 |
| Parties | TAYLOR v. TAYLOR et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Delaware County; Joseph G. Leffler, Judge.
Action by Henry H. Taylor against Samuel K. Taylor and others to revoke the probate of a will. From a judgment for defendants, plaintiff appeals. Affirmed.C. B. Templer, W. A. Thompson, W. H. Thompson, and R. W. Sprague, for appellant. William W. Orr and Harry H. Orr, for appellees.
Appellant filed his complaint July 3, 1907, making appellee Samuel K. Taylor, who is his brother and the executor, defendant, to set aside, and revoke the probate of the will of his mother on the grounds of her unsoundness of mind and undue influence exerted in the execution of her will. The sole error presented is upon overruling the motion for a new trial.
The testatrix was stricken with apoplexy July 12, 1899, at the age of 63 years, and died in January, 1907. The will was dated July 3, 1900. The stroke of apoplexy affected her speech, but she improved so that she could talk. It affected her locomotion, and the use of her entire left side, so that she could not walk thereafter, and was moved about in a wheeling chair. When first paralyzed, her mouth and one eye were drawn aside, but these conditions became almost normal before the will was made. The use of her left arm and left leg was never restored. She had a second stroke of apoplexy in July, 1906. She was the wife of a farmer, and owned 121 acres of land upon which, with her husband, she resided. She had been a widow since 1905. She managed her domestic and household affairs from a period shortly after the first stroke, through directions to others, until her death. By her will she bequeathed all her personal property to her husband, devised 41 acres of land to him for life with remainder to her son Samuel, and also devised to Samuel 40 acres additional, and appellant 40 acres. Her husband had been for many years an invalid; she informed the justice of the peace who drew her will as to the disposition of her property, which was irregular in outline. After reviving from the stroke, she directed her servants as to the household affairs, the purchase of clothing, as to the garden, and the fowls, the marketing, and inquired about and took part in the arrangements for the farming operations. At times she cried without any expressed reason for it, though at one time she seemed to be affected by the possible results her affliction might have upon her husband and their property affairs. She read newspapers, inquired about the neighbors, and their families. She laughed and talked some with her closest friends, but was not able to talk freely. Samuel Taylor and his wife waited on her continuously for about nine months. The physicians testified as to the tendency of apoplexy to impair the mental faculties, and as to its tendency to be progressive. The evidence is conflicting as to soundness and unsoundness of mind at the time the will was executed. With no claims of undue influence, the jury found for appellees. The testatrix was declared of unsound mind and incapable of managing her estate upon a complaint filed January 6, 1906. Upon the trial the contestor offered in evidence the petition, answer of the clerk, and the judgment of the court. This evidence was excluded, and error is here predicated on that action. There was no evidence given, or offered, to the point that the testatrix was of unsound mind or enfeebled prior to the stroke of apoplexy. The evidence offered was of a status found to exist 5 1/2 years afterward. It cannot be doubted that much latitude in point of time, both before and after the transaction under inquiry, is allowable in determining the question of soundness or unsoundness of mind. The reason for the rule is apparent. The consistency or inconsistency of acts or declarations, differences in conduct towards family, relatives, and friends, and differences in habits of life at different times, if they exist, are relevant to, and sometimes highly indicative of, conditions of mind, and therefore competent for the purpose of determining that question, when they are of such character as to denote the mental condition. In some states the statute authorizes the inquiry de lunatico to be extended to a time anterior to the inquiry itself; but our statute does not authorize a retroactive inquiry to be made, or status fixed, though we recognize the prima facie status fixed by the adjudication, and hold that, even though a will is executed after an adjudication of unsoundness, mental capacity may be shown. Harrison v. Bishop (1891) 131 Ind. 161, 30 N. E. 1069, 31 Am. St. Rep. 422.
Reliance is based upon the admissibility of this evidence on Nichol v. Thomas (1876) 53 Ind. 42. This was an action to set aside a deed upon the ground of insanity of the grantor. The court admitted the judgment declaring the grantor unsound of mind in a proceeding instituted 7 1/2 years later, as tending to show unsoundness when the deed was executed. Other evidence tended to show that he had been of unsound mind for 15 or 20 years before the deed was executed. The evidence of Dr. Mendenhall as to the grantor being, and having for four years previously been, of unsound mind, was held to have been erroneously excluded. This evidence was of a retroactive character, taking the mental condition of the grantor to within 3 1/2 years of the date of the deed. While it was held that both the record of the adjudication, and the testimony of Dr. Mendenhall were admissible, the opinion does not point out the grounds of the admissibility of the evidence. It is quite clear that Dr. Mendenhall's testimony was admissible and competent because he was an expert, and was coupled with evidence of the impaired mental condition of the grantor having existed for many years prior to the conveyance. The doctor's testimony was directed specifically to detailed acts denoting mental condition; but that is a very different character of evidence from the record of an adjudication of unsoundness which is not retroactive in effect, and in case where no prior weakness is shown, except that it might be relevant as tending to show continuance of a condition shown to have existed long previously (a showing not present in this case, on the presumption of the continuance of a condition of mind once shown to exist), but a relevant fact may be excluded without constituting harmful error, when the fact, if admitted, would not constitute error, so that in that particular case the admission of the record was relevant and clearly not harmful owing to the presumption of continuing incapacity, while the exclusion of the testimony of Dr. Mendenhall was harmful by reason of the same presumption and the special facts disclosed by Dr. Mendenhall. That this was the view of the court in that case is disclosed by the citation of Rush v. Megee (1871) 36 Ind. 69. A number of cases are cited by appellant to the proposition that adjudications of insanity are competent evidence, even though the adjudication is subsequent to the execution of the deed or will. An examination of these cases discloses that, with one or two exceptions, they are cases where under the statute, in proceedings de lunatico, provision was made for a retrospective finding, and it had been made; in others, the adjudication was made after the date of the transaction inquired into, and admitted, and the admission held not error; others, where there was evidence of mental capacity prior to the date under inquiry; other cases are instances where adjudication had preceded the date of the question in controversy, and involved the effect of the adjudication as to its conclusiveness, or mere prima facie existence of insanity. Whilst large latitude should be allowed in all such proceedings, and whilst there is no agreed limit of time within which the prior or subsequent condition is to be considered, the circumstances of each case in the very nature of things ought to control, and the discretion of the trial judge, though reviewable for abuse, ought to have weight. Enlow v. State (1900) 154 Ind. 664, 57 N. E. 539;Bower v. Bower (1895) 142 Ind. 194-197, 41 N. E. 523. The question in such cases is necessarily one of relevancy. Howes v. Colburn (1896) 165 Mass. 385, 43 N. E. 125;Lane v. Moore (1890) 151 Mass. 87, 23 N. E. 828, 21 Am. St. Rep. 430;Shailer v. Bumstead (1868) 99 Mass. 112;Herster v. Herster (1889) 122 Pa. 239, 16 Atl. 342, 9 Am. St. Rep. 95;Robinson v. Hutchinson (1853) 26 Vt. 38, 60 Am. Dec. 298;In re Merriman's Appeal (1896) 108 Mich. 454, 66 N. W. 372;Pittard v. Foster (1883) 12 Ill. App. 132; Wigmore, Evidence, §§ 233, 1671, and cases cited.
There are well considered cases holding a record of adjudication subsequent to the execution of the instrument incompetent, as only fixing a status as of the date of the adjudication, after a period as short as two years, and also as wholly inadmissible. Howes v. Colburn, supra; Entwhistle v. Meikle (1899) 180 Ill. 9, 54 N. E. 217;Rhoades v. Fuller (1897) 139 Mo. 179, 40 S. W. 760;Chase v. Spencer (1907) 150 Mich. 99, 113 N. W. 578;Knox v. Haug (1892) 48 Minn. 58, 50 N. W. 934;In re Pinney's Will (1880) 27 Minn. 280, 6 N. W. 791, 7 N. W. 144;Hopson v. Boyd (1845) 45 Ky. 296;Shirley v. Taylor's Heirs (1844) 44 Ky. 99; Page on Wills, § 402.
The inquiry must be sufficiently near in point of time to aid the jury in determining the mental condition at the time of the execution of the will. Enlow v. State, supra; Herster v. Herster, supra; Lane v. Moore, supra; Nonnemacher v. Nonnemacher (1894) 159 Pa. 634, 28 Atl. 439;Gorgas v. Saxman (1907) 216 Pa. 237, 65 Atl. 619;Green v. State (1894) 59 Ark. 246, 27 S. W. 5.
The argument here is simply an inference from a remote fact. In McCoy v. Jordan, 184 Mass. 575, 69 N. E. 358, it was held where there was an offer to show, where a man had died of a named disease, that it might have had some effect...
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