Willett v. Hall

• Decision Date: 19 May 1942
• Docket Number: 27682.
• Citation: 41 N.E.2d 619,220 Ind. 310
• Parties: WILLETT et al. v. HALL et al.
• Court: Indiana Supreme Court

41 N.E.2d 619

220 Ind. 310

WILLETT et al. v. HALL et al.

No. 27682.

Supreme Court of Indiana

May 19, 1942

Appeal from Circuit Court, Boone County; Edgar A Rice, judge.

Daily Daily & Daily, of Indianapolis, and Rogers & Smith of Lebanon, for appellants.

Parr Parr & Parr, of Lebanon, for appellees.

ROLL Judge.

This was an action by appellants against appellees to set aside the last will and testament of Caroline Sharp Wise, deceased. The complaint alleged all of the statutory grounds for setting aside a will. The main contention, however, rests upon the fourth specification, namely: that the execution of the will was obtained by undue influence. There was a trial by jury, and a verdict was returned in favor of appellees. A motion for a new trial was filed and overruled, which ruling of the court is the only error assigned on this appeal. Appellant by this appeal seeks to present a reserved question of law under § 2-3114, Burns' St. 1933, § 469, Baldwin's 1934, and in his brief under errors relied upon for reversal says:

'Plaintiffs present only one question for the court's consideration, i. e., did the Court err in refusing to instruct the jury that where a will is drawn in favor of one occupying a position of confidence and trust and such person either writes the will or procures it to be written or whose advice is sought and taken, the burden then rests on such beneficiary to disprove undue influence? The Court instructed the jury by its instructions 2, 10 and 24 that the burden of proof was on the plaintiff to prove all the material allegations of their complaint by a fair preponderance of the evidence. The plaintiffs by their request of instructions 13, 19, 20 and 21, fairly present the issue. The plaintiffs are not complaining of the instructions which the court gave on actual undue influence but they are insisting that the court erred in refusing the instructions requested on undue influence in a confidential relation.' Appellant's position with reference to the law governing the burden of proof is fairly stated by his tendered instruction No. 20, which the court refused to give, which instruction is as follows: 'If you find from the evidence that Elizabeth Hall was present and actively concerned in bringing about the execution of the will of Caroline Sharp Wise and that Caroline Sharp Wise was in the home of Elizabeth A. Hall and under her protection and that Elizabeth Hall was made the sole beneficiary of all the property of Caroline Sharp Wise except the $250 to Pleasant Grove Cemetery in Hamilton County, and if you further find that the testatrix's mind was enfeebled by age or disease, even though not to the extent of producing mental unsoundness, then it will devolve upon Elizabeth Hall to show affirmatively that the will was a free and voluntary act of the testatrix and without any undue influence on her part.'

We are first met with the contention of appellees that appellant has failed to present any question for the court's consideration, for the reason that the bill of exceptions neither shows nor purports to show what the evidence or the substance thereof was; but only purports to state the opinion and conclusions of the judge as to what the evidence tended to prove. The court, in the bill of exceptions, says that, 'the plaintiff introduced evidence, oral and written, which if true tended to prove the relationship between the defendant Elizabeth A. Hall and the decedent Caroline Sharp Wise before and at the time of the execution of said will.' 'That said evidence if true tended to prove that the testatrix Caroline Sharp Wise. * * *' Then follows what the court concluded was the effect of the evidence. The same may be summarized as follows:

That Caroline Sharp Wise was the widow of a Union soldier; that she was over eighty years of age and was the owner of certain property; that in September, 1926, Mrs. Wise fell and broke her hip; that she was removed by her sisters Elizabeth Hall and Mary H. Willett to a hospital in Indianapolis, where she remained until January, 1927, when Mrs. Hall removed Mrs. Wise to her home in Indianapolis. Mrs. Wise did not improve in health and died on June 9, 1927; that after Mrs. Wise was removed to the home of Mrs. Hall, Mrs. Hall called an attorney of the city of Indianapolis, to write the will of Mrs. Wise, which was dated January 12, 1927. Mrs. Hall requested one John S. Hussey to witness the execution of the will at the request of Mrs. Wise; that on the day the will was executed, Mr. Hussey and the attorney came to the home of Mrs. Hall and the will was executed in the presence of the attorney and Mr. Hussey. No other persons were present at the time of the execution of the will. After the will was executed, the will was placed in the safety deposit box of Mrs. Hall where it remained until after the death of Mrs. Wise.

By the terms of the will, Mrs. Hall was made the beneficiary of all of the estate except a specific bequest of $250 to the Pleasant Grove Cemetery located in Hamilton County, Indiana, for its upkeep; that Mrs. Hall has benefited under said will receiving property of the total value of approximately $15,000 to $18,000; that Mrs. Wise had no descendants and all of her property in the absence of a will would have descended to her next of kin, who were the appellants in this action; that the relationship between Mrs Hall and her sister Mrs. Sharp was intimate from childhood; that after the death of the husband of Mrs. Wise, Mrs. Hall loaned money to Mrs. Wise to pay her taxes, went shopping with her, helped select her dresses, and there was the most friendly relationship existing between the two; that after Mrs. Wise was injured, Mrs. Hall looked after the home of Mrs. Wise in Noblesville, and her farm, employed tenants, paid taxes, collected the rents, and looked after all of her property with the assent of Mrs. Wise. Mrs. Wise would consult with Mrs. Hall concerning business and personal matters; that the relations existing between Mrs. Wise and her next of...