Herring v. Watson , 182 Ind. 374 ( 1914 )

Spencer, J.

Appellee brought this action to resist the probate of the alleged will of Amanda J. Watson, deceased, for the reasons: (1) that at the time of the attempted execution of said will the testatrix was of unsound mind, and (2) that said will was unduly executed. The cause was tried by a jury which returned a verdict in favor of appellee and from a judgment on such verdict this appeal is prosecuted. The only error assigned is that the court erred in overruling appellants’ motion for a new trial and under this assignment appellants challenge certain instructions which were given to the jury.

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Instruction No. 1 stated the substance of the pleadings filed by the parties and told the jury that “under the issues thus joined the burden is on the proponents to establish by a preponderance of all the evidence in the ease that at the time of the execution of said instrument said Amanda J. Watson signed the same in the presence of two witnesses and declared the same to he her last will and testament and that said witnesses signed said will as witnesses in the presence of said Amanda J. Watson; that at that time she was twenty-one years of age, of sound mind and not under coercion.” Appellants object to this instruction on three grounds: (1) that it required them to prove that the testatrix signed said will in the presence of two witnesses; (2) that it required them to prove that she, in the presence of two witnesses, declared said instrument to be her last will and testament; and (3) that said instruction unlawfully put the burden on appellants to establish that at the time said will was signed the testatrix was not under coercion. It is true, as appellants contend, that one who makes a will need not sign it in the presence of the witnesses, provided he acknowledges his signature in their presence. Reed v. Watson (1867), 27 Ind. 443. It is also true that the witnesses need not know that the instrument which they attest is the will of the testator. Turner v. Cook (1871), 36 Ind. 129; Brown v. McAlister (1870), 34 Ind. 375. Therefore, as an abstract statement of the law instruction No. 1 is erroneous to the extent indicated by appellants’ first and second grounds of objection. But the record before us does not contain the evidence given at the trial and the rule is well settled that under such circumstances the appellate tribunal will not reverse the judgment on the instructions given unless they are so radically erroneous as to be incorrect in view of any facts which might have been proven under the issues. DeHart v. Board, etc. (1896), 143 Ind. 363, 367; Hilker v. Kelley (1892), 130 Ind. 356, 361, 15 L. R. A. 622. If appellants’ evidence undisputed and without conflict, showed that the testatrix actually signed the wrill in the presence of the witnesses and stated to them that it was her last will and testament, then the alleged errors in the instruction were at least clearly harmless. Under the rule above stated we must now assume that such a showing was made.

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The third objection to this instruction is also urged against instruction No. 3 given by the court of its own motion and in neither instance is the objection well taken. The cases of Steinkuehler v. Wempner (1907), 169 Ind. 154, 15 L. R. A. (N. S.) 673, and McReynolds v. Smith (1909), 172 Ind. 336, clearly establish the proposition that in a proceeding to probate a will, the burden of proving the due execution of the instrument and the testamentary capacity of the testator rests on the proponents and not on the objectors, if any there be. In the Steinkuehler case reference is made to Morrell v. Morrell (1901), 157 Ind. 179, in which it is suggested by way of argument that the burden of proving undue influence or unsoundness of mind is on the objectors to the probate of an alleged will, and the suggestion is expressly disapproved.

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Objection is also urged against instructions Nos. 4 and 5 given by the court at the request of appellee. It appears, however, that these instructions were not properly copied into the original record and on petition by appellee, of which petition appellants were duly served with notice, correction has .been made by a writ of certiorari. The instructions are not now open to the objections urged.

The alleged errors, if any, in the remaining instructions given have either been waived by appellants’ failure to discuss them or are not of so serious a character as to require us to make particular reference to them. The charge as a whole stated the law fully and fairly and such errors as appear therein are not sufficient to warrant a reversal of the judgment, especially since we are not advised as to the evidence which such charge was designed to cover.

Judgment affirmed.