Thompson v. Miller
| Decision Date | 15 December 1914 |
| Docket Number | 22,622 |
| Citation | 107 N.E. 74,182 Ind. 545 |
| Parties | Thompson v. Miller et al |
| Court | Indiana Supreme Court |
From Shelby Circuit Court; Hugh Wickens, Special Judge.
Action by Elizabeth A. Thompson against Mary Miller and others. From a judgment for defendants, the plaintiff appeals.
Affirmed.
D. L Wilson, W. A. Thompson and R. W. Sprague, for appellant.
Kendall M. Hord and Edmund K. Adams, for appellees.
OPINION
This action was to contest the validity and probate of the will of Thomas M. Jeffras on the alleged ground that said will was unduly executed, under charges, as made by the complaint, "that the will was unduly executed, it was obtained by fraud, it was procured by undue influence". The sole question not waived and presented for our consideration arises out of the alleged error in overruling appellant's motion for a new trial. Under this assignment appellant challenges the action of the trial court in giving of its own motion, instructions Nos. 3 and 15 and in giving instructions Nos. 4 and 12 as tendered by appellees.
Appellees contend that none of these instructions are properly in the record for the reason that "all the instructions given to the jury, those requested and given and those requested and refused, were not signed by the trial judge and the record does not disclose the order in which those given were read to the jury". Were this an effort to have the instructions made a part of the record without a bill of exceptions under § 561 Burns 1914, Acts 1907 p. 652, appellees' contention would then prevail but the instructions have been brought into the record by a bill of exceptions, and properly so.
The evidence not being in the record the presumption is, that the cause was tried on its merits and properly decided under the issues; also that the instructions given were applicable to the evidence, and where the instructions correctly state the law under any supposable state of facts provable under the issues, they will not be held erroneous. Adams v. Vanderbeck (1897), 148 Ind. 92, 94, 62 Am. St. 497, 45 N.E. 645; Ferris v. State (1901), 156 Ind. 224, 230, 59 N.E. 475, and cases cited.
From a consideration of the entire record it is apparent that the undue execution relied on by appellant is the alleged undue influence of appellee Mary Miller over the testator. This fact is evident from a reading of instruction No. 10 tendered by appellant and given by the court. It reads as follows: "If you shall believe from the evidence that said Thomas M. Jeffras, at the time of the execution of said will in controversy, was weak and enfeebled in mind by reason of age, or from sickness or from any other cause, and if said Mary F. Miller took advantage of such weakness, and by any artifice, cunning or any undue influence she may have possessed, or by any improper practices, induced said Thomas M. Jeffras to make said will such as that in the free use and exercise of his deliberate judgment he would not have made, then said will was produced by fraud and is invalid and your verdict should be in favor of the plaintiff." Under a general allegation of undue execution of a will, every species of duress, fraud, undue influence or whatever else tends to point out undue execution may be shown. Clear Spring Tp. v. Blough (1909), 173 Ind. 15, 24, 88 N.E. 511, and cases cited.
Instruction No. 3, complained of, told the jury that "Upon the issues joined upon the...
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