Wiley v. Gordon

• Decision Date: 10 March 1914
• Docket Number: 22,046
• Citation: 104 N.E. 500,181 Ind. 252
• Parties: Wiley et al. v. Gordon et al
• Court: Indiana Supreme Court

104 N.E. 500

181 Ind. 252

Wiley et al. v. Gordon et al

No. 22,046

Supreme Court of Indiana

March 10, 1914

From Wells Circuit Court; Charles E. Sturgis, Judge.

Action by James Gordon and others against Alexander Wiley and others. From a judgment for plaintiffs, the defendants appeal.

Reversed.

A. L Sharpe, A. W. Hamilton, George H. Koons and George H. Koons Jr., for appellants.

Frank W. Gordon, William H. Eichhorn and Edwin C. Vaughn, for appellees.

OPINION

Cox, J.

Robert W. Wiley, then about 73 years old, made his will in 1899. This will, after some special minor bequests and after taking into account certain specified advancements, devised his estate equally to his eight children, who were then all living and adults who were settled in life. Thereafter one of his children, the mother of appellees, died, and after her death, he, in 1907, executed a codicil to the will by which he bequeathed to each of appellees a specific sum of money, the total of which sums was less than would have been their mother's equal share, and devised the residuary estate in equal shares subject to advancement to his seven surviving children. Robert W. Wiley died in 1910 and the will and codicil were duly admitted to probate.

This action was brought by appellees, the two minor sons of the deceased daughter of Wiley to contest the validity of the codicil on the following grounds: (1) That at the time of its alleged execution, Wiley was of unsound mind; (2) that its execution was procured by undue influence; (3) that it was unduly executed; (4) that it is void and not duly executed because not attested by two competent witnesses as required by law, in that one of the two witnesses who attested it was one of the surviving children and heirs-at-law of the testator and a residuary legatee and was also named as sole executor. To the latter ground of contest, the court sustained a demurrer addressed to it by appellants. A trial by jury resulted in a general verdict that the testator was of unsound mind at the time he executed the codicil and incapable of executing the same, and that it was unduly executed. The general verdict was accompanied by answers to interrogatories which were in harmony with it. From a judgment in harmony with the verdict, adjudging the codicil invalid and revoking the probate of it, this appeal is prosecuted and the only error which is well assigned, that is relied on for reversal, is that the trial court erred in overruling appellants' motion for a new trial. The causes assigned for a new trial, and now relied on as the bases of errors for which a reversal of the judgment is asked, are the insufficiency of the evidence in law and fact to support the verdict, the admission and exclusion of certain testimony and the refusal of the court to require two interrogatories to be answered more certainly and specifically.

Appellees have assigned the action of the trial court in sustaining the demurrer to their fourth ground of contest as cross error and, it is claimed, the determination of the question thus raised favorably to them must result in affirming the judgment and will obviate the necessity of giving consideration to the questions arising on appellants' various claims of error. We deem it proper, therefore, to give first consideration to the cross error. Section 18 of our statute relating to wills, being § 3132 Burns 1908, § 2576 R. S. 1881, provides: "No will except a nuncupative will shall affect any estate, unless it be in writing, signed by the testator, or by some one in his presence with his consent, and attested and subscribed in his presence by two or more competent witnesses; and if the witnesses are competent at the time of attesting their subsequent incompetency shall not prevent the probate thereof." Section 29 of the same statute, being § 3144 Burns 1908, § 2586 R. S. 1881, provides: "If any person shall be a subscribing witness to the execution of any will in which any interest is passed to him, and such will cannot be proven without his testimony or proof of his signature thereto as a witness, such will shall be void only as to him and persons claiming under him, and he shall be compellable to testify respecting the execution of such will as if no such interest had been passed to him; but if he would otherwise have been entitled to a distributive share of the testator's estate, then so much of said estate as said witness would have been thus entitled to, not exceeding the value of such interest passed to him by such will, shall be saved to him." It is the contention of appellees under their assignment of cross error that, as the codicil was attested by only two witnesses,--one of them incompetent by reason of interest, § 3132, supra, was not complied with and the codicil was void and without effect on the estate of the testator under the provisions of that section. It is further claimed that § 3132, supra, is not qualified by § 3144, supra, and that the codicil in suit is unaffected by the latter section, the contention being that it must be taken to provide a means of probating a will attested by the required number of competent witnesses and also by a devisee where neither of the competent witnesses is at hand or available to make proof of the will, and the devisee is.

If the question presented were only involved in the court's ruling on the demurrer, we would not feel called upon to consider it, for it is manifest that appellees could not have been harmed by the ruling. The elimination from appellees' complaint of the fourth ground of contest did not affect in any way their right to contest the validity of the codicil on the ground of the insufficiency of its attestation, for the reason that the third ground of contest stated in their complaint was that the codicil was unduly executed. This, it is clear, embraced insufficient attestation and under it, the way was open for all the proof against the validity of the codicil which could have been made under the fourth alleged ground of contest. It has long been the rule that all objections to the validity of a will or codicil for which a contest may be waged under the provisions of § 3154 Burns 1908, § 2596 R. S. 1881, may be proved under the general allegation that the will or codicil was unduly executed, save only the ground of the unsoundness of mind of the testator. Kenworthy v. Williams (1854), 5 Ind. 375; Reed v. Watson (1867), 27 Ind. 443; Willett v. Porter (1873), 42 Ind. 250; Bowman v. Phillips (1874), 47 Ind. 341; Lange v. Dammier (1889), 119 Ind. 567, 21 N.E. 749; McDonald v. McDonald (1895), 142 Ind. 55, 41 N.E. 336. The evidence in the case, however, shows that the codicil was attested by two witnesses only and that one of them was one of testator's children and a residuary devisee. If appellees' contention that this rendered the instrument void must be sustained, then, of course, the judgment must be affirmed on the evidence, otherwise appellants' claims of error must be considered.

Our code changed the common-law rule and made parties and persons interested in the subject-matter of the litigation competent witnesses except as therein otherwise provided. § 519 Burns 1908, § 496 R. S. 1881. An exception to this declaration of competency is found in § 522 Burns 1908, § 499 R. S. 1881, which reads as follows: "In all suits by or against heirs or devisees, founded on a contract with or demand against the ancestor, to obtain title to or possession of property, real or personal, of, or in right of, such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor." It has been settled that an attesting witness is competent and satisfies the provisions of § 3132, supra, if, at the time he signs, he is competent to testify in court to the facts which he attests. Belledin v. Gooley (1901), 157 Ind. 49, 60 N.E. 706; Hiatt v. McColley (1908), 171 Ind. 91, 85 N.E. 772; Wisehart v. Applegate (1909), 172 Ind. 313, 88 N.E. 501; 1 Henry, Probate Law (3d ed.) § 475. It has been uniformly held that the exception to the competency of parties and persons interested which is made by § 522, supra, applies to proceedings to contest wills and renders them incompetent to testify concerning matters involved in the execution of the will, while leaving them free to testify to matters open to the observation of others such as the mental testamentary capacity of the testator. Lamb v. Lamb (1885), 105 Ind. 456, 5 N.E. 171; Staser v. Hogan (1889), 120 Ind. 207, 21 N.E. 911, 22 N.E. 990; Burkhart v. Gladish (1889), 123 Ind. 337, 24 N.E. 118; Wallis v. Luhring (1892), 134 Ind. 447, 34 N.E. 231; McDonald v. McDonald, supra; Belledin v. Gooley, supra; Hiatt v. McColley, supra. It follows that a devisee under a will or codicil is not a competent attesting witness and the provisions of § 3132, if standing alone as the unqualified law on the subject, would render a will or codicil signed by only one competent witness and a devisee wholly void. Belledin v. Gooley, supra.

Consideration is therefore shifted to the question of the effect of § 3144, supra, in such case. The question as applied to facts identical with those here involved has not been decided in this State. It has been held that where a will was signed by but two attesting witnesses, one of whom was the wife of the sole beneficiary and rendered incompetent by § 525 Burns 1908, § 501 R. S. 1881, which provides that when a husband or wife is a party, and not a competent witness, the other shall also be excluded,--such will was wholly void. Belledin v. Gooley, supra. In Hiatt v. McColley, supra, it was held, in a contest of a will before probate, that one named therein as executor and not otherwise a...