VanMeter v. Ritenour, 24,186

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

141 N.E. 329

193 Ind. 615

VanMeter et al. v. Ritenour, Administrator

No. 24,186

Supreme Court of Indiana

November 16, 1923

From Tippecanoe Circuit Court; Henry H. Vinton, Special Judge.

Action by Fay Etta VanMeter and others against John F. Ridenour administrator, and others to contest the will of John F Ridenour. From a judgment for defendants, the plaintiffs appeal.

Affirmed.

Stuart Simms & Stuart, Victor H. Ringer and McCabe & Sons, for appellants.

U. S. Lesh, Attorney-General, Harley D. Billings, C. V. McAdams and Harry P. Schultz, for appellees.

OPINION

Gause, J.

This is an action by the appellants against appellees to set aside the will and codicil thereto of John Ridenour, 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 appellants 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, that such fact is prima facie evidence that the testator was a person of sound mind. The court in that case held the instruction referred to erroneous because it permitted the jury to consider as evidence of testator's soundness of mind, the fact that his will had been admitted to probate.

In the case at bar, the court further instructed the jury, at the request of the appellants, as follows: "No. 17. If the plaintiffs in this cause have proven by a fair preponderance of the evidence, the charge that John Ridenour had not sufficient mental capacity to execute the will and codicil in suit, at the respective times that he executed the same, then such will and codicil would be invalid in law, and you should so find, and if such proof has been made, the fact, if it be a fact, that the will and codicil has been heretofore probated in the Warren Circuit Court, would not uphold the will and codicil or render them valid. I instruct you that the record of the probate of the will and codicil in question cannot be considered by you as evidence tending to prove the sanity of the testator, John Ridenour, at the time of the execution of said will and codicil."

The...