Young v. Montgomery

• Decision Date: 04 June 1903
• Docket Number: 19,931
• Citation: 67 N.E. 684,161 Ind. 68
• Parties: Young v. Montgomery
• Court: Indiana Supreme Court

67 N.E. 684

161 Ind. 68

Young v. Montgomery

No. 19,931

Supreme Court of Indiana

June 4, 1903

From Shelby Circuit Court; Douglas Morris, Judge.

Action by Elizabeth A. Young against Samuel F. Montgomery. From a judgment for defendant, plaintiff appeals.

Affirmed.

L. F Wilson, A. J. Williams, R. W. Miller and H. C. Barnett, for appellant.

H. S Downey, C. A. Major, Isaac Carter and H. C. Morrison, for appellee.

OPINION

Gillett, J.

This suit was instituted by appellant against appellee to contest a testamentary instrument that had been probated as the last will of one Nancy Montgomery, deceased. There was a verdict and judgment for appellee. There is but one sufficient assignment of error, and that is based on the overruling of a motion for a new trial. Elliott, App. Proc., § 351.

Appellant's counsel first complain of the action of the trial court in the giving of instruction number two, whereby the issue was narrowed to the question as to whether the said Nancy was of unsound mind at the time she attempted to execute said instrument. As said instruction is only challenged in the motion for a new trial by an assignment that jointly questions the correctness of fourteen instructions, and as some of them were proper instructions, and not questioned by appellant's counsel, it is evident that the question as to whether instruction number two was correct is not properly before us. Jones v. State, 160 Ind. 537, 67 N.E. 264. The fact that said instruction was made the subject of a separate exception, as shown in the bill of exceptions, will not avail, as the error, if any, must also be assigned as a cause for a new trial. Cline v. Lindsey, 110 Ind. 337, 11 N.E. 441.

Appellant's counsel criticize said instruction because it withdrew from the jury all question as to undue influence. Although, in view of the state of the record, we were not required to consider the question, we have read the evidence, and are prepared to express an opinion upon the point. While undue influence is a relative term, and always to be taken in the concrete, since the influence that it is claimed was undue must have a correlate in the mental condition of the person who attempts to execute the will, yet it must be remembered that the influence that the law denominates as undue must take away the supposed testator's free agency in the particular instance. Stevens v. Leonard, 154 Ind. 67, 77 Am. St. 446, 56 N.E. 27; 1 Jarman, Wills (6th ed.), 66, note. When so tested, we think that the evidence that was introduced in the case before us did not warrant the submission of the question to the jury. There was evidence of some circumstances that it would have been proper to prove in making out a case of undue influence, but there was an utter absence of evidence concerning what would be the center or core of such a case, and, as the conclusion could not have been reached that there was undue influence except by building presumptions upon presumptions--a wholly inadmissible method of reasoning--we think that the court properly withdrew the issue in question from the consideration of the jury. United States v. Ross, 92 U.S. 281, 23 L.Ed. 707; Manning v. Insurance Co., 100 U.S. 693, 25 L.Ed. 761; Morrissey v. Ingham, 111 Mass. 63.

While appellant was upon her case in chief she caused appellee to be called as a witness and proved by him that he had lived with his mother (the said Nancy) during the entire time that they were both in life, and as to what real estate appellant had inherited from her father, whose death preceded the death of said Nancy. At a subsequent stage of the trial, appellee offered himself as a witness, and, over the objection of appellant, was permitted to testify as to certain matters that did not directly relate to the mental condition of his mother, or to the subject-matter of his examination while a witness for appellant. It is urged that the witness was incompetent under § 507 Burns 1901, and the case of McDonald v. McDonald, 142 Ind. 55, 41 N.E. 336, is cited as to the construction of said section.

Our statute concerning the incompetency of parties, in suits by or against heirs or devisees, to testify to any matter which occurred prior to the death of the ancestor, is a remnant of the common law doctrine concerning the incompetency of witnesses having a legal interest. The modern view is that in the main it makes for the ascertainment of truth to permit all witnesses to testify, but in cases coming within said section and kindred sections the impossibility of contradicting the witness by the testimony of the ancestor furnished a sufficient reason to the mind of the legislature for excluding the testimony of such witnesses as to what occurred prior to the death of the ancestor.

In instances where a witness' incompetency at common law was based on public policy, the rule of incompetency could not be avoided by consent, but the objection of interest seems to have been founded, not on public policy, but merely upon the supposed improbability of the testimony of interested witnesses. Thus, it was said by Lord Chief Baron Gilbert: "Where a man, who is interested in the matter in question, would also prove it, it rather is a ground for distrust than any just cause of belief; for men are generally so short-sighted as to look to their own private benefit, which is near them, rather than to the good of the world, 'which, though on the sum of things really best for the individual,' is more remote; therefore, from the nature of human passions and actions, there is more reason to distrust such a biased testimony than to believe it." Gilbert, Evidence, 223.

The rule of incompetency because of interest was more relaxed in chancery, and a failure to make the objection seasonably operated as a waiver of it at law. 3 Phillips, Evidence (5th Am. ed.), 97. It is, of course, unnecessary to examine the curious learning upon the subject of interest, but a comparison of the earlier English cases with those of more recent date shows that the observation of Lord Mansfield on the question of interest was justified, that "The old cases, upon the competency of witnesses, have gone upon very subtle ground, but of late years the courts have endeavored, as far as possible, consistent with these authorities, to let the objection go to the credit, rather than the competency, of the witness." Walton v. Shelley, 1 T. R. 296, 300.

Our statute permits a party to call his adversary and examine him (§ 510 Burns 1901), and the question arises as to whether...