Van Meter v. Ritenour, 24186.

• Citation: 141 N.E. 329, 193 Ind. 615
• Case Date: November 16, 1923
• Court: Supreme Court of Indiana

193 Ind. 615
141 N.E. 329

VAN METER et al.
v.
RITENOUR et al.

No. 24186.

Supreme Court of Indiana.

Nov. 16, 1923.

Appeal from Circuit Court, Tippecanoe County; Henry H. Vinton, Special Judge.

Action by Fay Etta Van Meter and others against John F. Ritenour, administrator, and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Stuart, Simms & Stuart, of La Fayette, and Victor H. Ringer and McCabe & Sons, all of Williamsport, for appellants.

U. S. Lesh, Atty. Gen., Harley O. Billings, of Williamsport, and McAdams & Schultz, of La Fayette, for appellees.

GAUSE, J.

This is an action by the appellants against appellees to set aside the will and codicil thereto of John Ritenour, deceased.

The appellants alleged that said testator was of unsound mind at the time of the execution of the alleged will and codicil, and also alleged that said will and codicil were procured by undue influence and fraud, and that the same were unduly executed.

The appellant withdrew from the jury the issues of undue influence and fraud and relied solely upon the issue of unsoundness of mind.

The issues were closed by a general denial, and a trial by jury resulted in a verdict for the defendants (appellees).

From a judgment upon such verdict the appellants appeal.

The appellants filed below their motion for a new trial, in which was assigned as a cause therefor, among other things, that the court erred in giving to the jury instruction No. 7, given at the request of the appellees.

The motion for a new trial was overruled, and the appellants assign as error the overruling of such motion and discuss in their brief the one alleged error in the giving of said instruction No. 7.

In said instruction the court told the jury that the will and codicil thereto had been admitted to probate, and that therefore the law presumes that the testator was of sound mind at the times they were executed; that such presumption was not conclusive and might be overcome by the plaintiffs if they established the allegations of their complaint by a preponderance of the evidence.

Appellants rely entirely upon the case of Kilgore v. Gannon (1916) 185 Ind. 682, 114 N. E. 446, to sustain their contention that this instruction was erroneous.

In the case of Kilgore v. Gannon, supra, the court held erroneous an instruction which told the jury that, if they found that the will in question had been admitted to probate, such fact is prima facie evidence that the testator was a person of sound mind. The...