Whiteman v. Whiteman

• Decision Date: 10 March 1899
• Citation: Whiteman v. Whiteman, 152 Ind. 263, 53 N.E. 225 (Ind. 1899)
• Parties: WHITEMAN et al. v. WHITEMAN et al.
• Court: Indiana Supreme Court

152 Ind. 263

53 N.E. 225

WHITEMAN et al.

v.WHITEMAN et al.

Supreme Court of Indiana.

March 10, 1899.

Appeal from circuit court, Vigo county; D. N. Taylor, Judge.

Action by George G. Whiteman and others against Stephen S. Whiteman and others to contest the will of Ellis O. Whiteman, deceased. Judgment for defendants and plaintiffs appeal. Affirmed.S. R. Hamill, J. G. McNutt, J. D. Early, and A. M. Higgins, for appellants. Kleiser & Kleiser, Lamb & Beasley, and S. B. Davis, for appellees.

DOWLING, J.

This is a suit to contest the validity of a will. The grounds of the contest are: (1) That the testator was of unsound mind; (2) that the will was unduly executed; (3) that the instrument is not a will, but a codicil to a will which was revoked; and (4) that the instrument is not a will, but a codicil to a will which has not been admitted to probate in any court. Issues were formed, and a trial by jury resulted in a verdict in favor of the validity and due execution of the will. A motion for a new trial was overruled. Appellants excepted, and judgment was rendered ratifying the probate of the will. From this judgment the contestors appeal.

The facts are these: Ellis O. Whiteman was a childless widower, possessed of real and personal property of the probable value of $17,000, situated in Vigo county, Ind., where he resided. During the latter part of his life he was afflicted with a painful and incurable disease, which rendered him almost helpless. Some time in February, 1890, he sent for one Murphy, a justice of the peace, with whom he was intimately acquainted, and instructed him to prepare his will. Murphy wrote the instrument, agreeably to the directions given him by Whiteman, and it was executed by the latter in the presence of two witnesses, who subscribed it at his request. This will was delivered by Whiteman to Murphy for safe-keeping. On the 18th of October, 1890, Whiteman again sent for Murphy, and told him he wished to give to Richard M. Doty and Elizabeth Doty each the sum of $300, and that this should be done by a codicil to his will. Murphy returned to his home to get the will executed in February, 1890, and brought that will to Whiteman. Murphy began the preparation of the proposed codicil to this will, and when he had written the words, “Whereas I, Ellis O. Whiteman, on the 18th day of October, 1890, made my last will and testament of that date, do hereby declare the following to be a codicil to the same,” Whiteman interrupted him, and said, “Why, just copy the other [referring to the will of February, 1890], and put those two clauses in it, and that will be all right.” Murphy then proceeded to copy the will of February, 1890, without change, except that the two clauses giving to Richard M. Doty and Elizabeth Doty $300 each were inserted. By mistake, Murphy had written the words, “18th day of October, 1890,” instead of “February-, 1890.” The instrument, when completed, was signed by Whiteman in the presence of two witnesses, who, at his request, subscribed it in his presence. Whiteman thereupon directed Murphy to take the will of February, 1890, to the stove, and let him see him burn it, and Murphy did so, Whiteman remarking at the time that he “didn't want to have but one will in existence.” He also told Murphy to take the instrument just executed to his home, and keep it. No persons were present when this paper was executed, excepting Whiteman, Murphy, and the subscribing witnesses. Whiteman died December 19, 1890; and after his death no will, or writing purporting to be a will, excepting the instrument so executed by him on the 18th day of October, 1890, was found among his papers or elsewhere. There was no proof that he made any will on the 18th of October, 1890, except the will in question.

In the 993 pages of testimony contained in the record we find the usual conflict of statement among the witnesses as to the condition of the mind of the testator, but no evidence as to the procuration of the will by the exercise of undue influence by any person. It is urged on behalf of appellants that the court erred in admitting extrinsic evidence “to contradict and impeach” the writing executed October 18, 1890, and claimed by appellees to be the last will and testament of Ellis O. Whiteman; that it erred in giving, of its own motion, instruction numbered 2, and in refusing to give instruction numbered 18 asked for by appellants. Several minor questions are discussed in the brief of appellants' counsel, but they will not require further mention. The entire instrument, which had previously been admitted to probate as the last will of Ellis O. Whiteman, and which is the subject of controversy here (omitting the various devises and legacies), is in these words:

“Where, I, Ellis O. Whiteman, on the 18th day of October, eighteen hundred and ninety, made my last will and testament of that date, do hereby declare the following to be a codicil to the same: I do hereby give and bequeath,” etc. “I hereby nominate and appoint James F. Murphy, executor of this, my last will and testament, hereby authorizing and empowering him to compromise, adjust, release, and discharge, in such manner as he may deem proper, the debts and claims due me. I do also authorize and empower him, if it shall become necessary, in order to pay my debts, to sell by private sale, or in such manner, upon such terms of credit, or otherwise, as he may think proper, all or any part of my real estate, and deeds to purchasers to execute, acknowledge, and deliver in fee simple. I hereby revoke all former wills by me made. In testimony hereof, I have hereunto set my hand and seal this 18th day of October in the year 1890. [Signed] Ellis O. Whiteman.

Signed and acknowledged by said Ellis O. Whiteman as his last will and testament in our presence. Witnesses: Carl Krietenstein. Lemuel M. Hopewell.”

From a very early day the courts have found it necessary to apply with extreme rigor the rules excluding extrinsic evidence affecting the construction of wills, or the correction of alleged mistakes therein. The opportunities for fraud and the temptations to perjury which would be afforded by a relaxation of these rules forbid any deviation from the spirit and manner in which they have constantly been insisted upon and enforced. We have no inclination to abrogate or disregard any of these wise and indispensable restrictions, and we believe that cases of particular hardship arising from their application are less to be deprecated than the general inconvenience and peril which would ensue upon their lax or irregular enforcement. These rules, however, have always been held subject to certain reasonable exceptions, and it is important in every instance to determine whether the case falls within the rule or within the exception. In Lord Cheney's Case, 5 Coke, 68a, “Sir Thomas Cheney, Knt. Lord Warden of the Cinque Ports, 1 Eliz., had made his will in writing, and thereby devised to Henry, his son, divers manors, and to the heirs of his body, the remainder to Thomas Cheney, of Woodley, and to the heirs male of his body, on condition ‘that he, or they, or any of them shall not alien, discontinue, etc.’ And it was a question in the court of wards, between Sir Thomas Perot, heir general to the lord warden, and divers of the purchasers of Sir Thomas Cheney, if the said Sir Thomas should be received to prove by witnesses that it was the intent and meaning of the devisor to include his son and heir within these words of the condition [he or they], and not only to restrain Thomas Cheney, of Woodley, and his heirs males of his body. But Wray and Anderson, chief justices, on conference had with other justices, resolved that he should not be received to such averment out of the will, for the will concerning lands, etc., ought to be in writing, and the construction of wills ought to be collected from the words of the will in writing, and not by any averment out of it; for it would be full of great inconvenience that none should know by the written words of a will what construction to make, or advice to give, but it should be controlled by collateral averments. But it is said, if a man has two sons, both baptized by the name of John, and, conceiving that the elder, who had long been absent, is dead, devises his land by his will in writing to his son John generally, and in truth the elder is living, in this case the younger son may, in pleading or in evidence, allege the devise to himself, and, if it be denied, he may produce witnesses to prove his father's intent, that he thought the other to be dead, or that he at the time of the will made named his son ‘John, the younger,’ and the writer left out the addition of ‘the younger.”’ In Lord Walpole v. Earl of Cholmondeley, 7 Term R. 138, it is said by Lord Kenyon (page 148): “There is no doubt but that parol evidence may be received in many cases to explain doubts in wills, and the rule is correctly described in the maxim of Lord Bacon, which has been alluded to. Where extrinsic circumstances let in by parol testimony, explaining the situation of the testator's family and of the legatees, introduce a doubt of the testator's intention, the same kind of evidence that introduces the doubt may be admitted to explain it. On that proceeded the case that I mentioned on a late occasion of Beaumont v. Fell , where a legacy was given by the will to Catharine Earnley, there being no such person in existence. There was no ambiguity on the face of the will, but the latent ambiguity was introduced by extrinsic evidence, and the same kind of evidence also showed that there was a person of the name of Gertrude, whom the testator called Gatty, which name the person who drew the will mistook for Katy. In that case, therefore, as parol evidence was admitted to show the latent ambiguity, parol evidence was also admitted to explain it. It has been argued that the evidence which was rejected by the court of common pleas ought to...