Ludwick, Extr. v. Banet

124 N.E.2d 214, 125 Ind. App. 465, 1955 Ind. App. LEXIS 146

• Court: Indiana Court of Appeals
• Decided: February 10, 1955
• Docket: 18,579
• Status: Published

Opinions

Pfaff, J.

The appellee, Richard Banet, brought this action to contest the Will of his mother, Mildred M. Hobbs, deceased. His complaint alleged that the Will was invalid for the reason that the testatrix, Mildred M. Hobbs, did not have the necessary testamentary capacity; that the Will was obtained under undue influence; and that the Will of the testatrix was unduly executed.

The appellant, James K. Ludwiek, and the appellee, Richard Banet, were half-brothers and the sons of Mildred M. Hobbs. Richard Banet was born to Mildred M. Hobbs out of wedlock, and was adopted when he was a small boy by Frank and Ina Banet.

The evidence discloses that Richard Banet met his mother for the first time either the last day of March or the first day of April, 1952. The decedent, Mildred M. Hobbs, married one Ludwiek in the year of 1913 and separated in July of 1914. The appellant, James Ludwiek, was born out of this marriage the 25th day of January, 1915. The appellant lived with his grandparents until he was about seventeen years of age, after which time he lived with his mother, Mildred M. Hobbs, for a short period of time. Later the decedent married one Hobbs who died in 1946. During all her lifetime, Mildred M. Hobbs was steadily employed. The last years of her life she was suffering from an incurable disease which necessitated four operations. She died April 28, 1953, leaving a Last Will and Testament dated February 14, 1953. The Will was admitted to probate May 1, 1953.

The cause was submitted to a jury. The jury entered the following verdict:

“We, the Jury, find for the plaintiff: that the instrument of writing probated as the Last Will and Testament of Mildred M. Hobbs, deceased, is invalid; that it is not her last will and testament and its probate should be set aside.”

Judgment was entered accordingly.

The sole error relied upon for reversal is the overruling of appellants’ motion for new trial, which is as follows:

“Comes now the defendant in the action above captioned and moves the court to grant a new trial of this cause for the following reasons:

“(1) The verdict of the jury is not sustained by sufficient evidence.

“(2) The verdict of the jury is contrary to law.

“(3) Error of law occurring at the trial in this: The court erred in giving and reading to the jury, over the written objection of the defendant, plaintiff’s instruction No. 9.

“Wherefore, defendant prays that he be granted a new trial herein.”

The record discloses that plaintiff tendered instructions numbered 1 to 7, inclusive. We do not find any place in the transcript or briefs where plaintiff’s instruction No. 9 is set out. Therefore, we do not deem it necessary to give this further consideration. Rule 2-17(f). Quail v. Banta (1943), 113 Ind. App. 664, 48 N. E. 2d 841.

It is a well-recognized rule that if there is any evidence of probative value to support the verdict, it would be our duty to affirm. After a careful examination of the evidence in the record most favorable to the appellee, we are of the opinion there is no substantive evidence of probative value to sustain the verdict of the jury that the Will was invalid because the testatrix did not have the necessary testamentary capacity, or that she was unduly influenced, or that the Will was unduly executed. Noyer v. Ecker (1954), 125 Ind. App. 63, 119 N. E. 2d 902; Daugherty v. Daugherty (1945), 115 Ind. App. 253, 57 N. E. 2d 599; Quail v. Banta, supra; Wersich v. Phelps (1917), 186 Ind. 290, 116 N. E. 49. The record discloses that a doctor and a relative of the testatrix testified that in their opinion she was of sound mind. This evidence was uncontradicted. We find no evidence in the record herein that she did not have testamentary capacity.

The real issue in this case is whether or not the undue influence alleged to have been practiced by the appellant, James K. Ludwick, on his mother, Mildred M. Hobbs, was at a time she was under the influence of drugs and opiates to the extent that the Will was not her voluntary act and deed. There is a complete lack of evidence to sustain the verdict of the jury that the execution of the Last Will and Testament of Mildred M. Hobbs was not her voluntary act or deed, or that she was in anywise induced by unlawful means or undue influence to make the Will in question.

“Undue influence, in order to make a will void, must be directly connected with its execution and must operate at the time it is made. It must be of such compelling force that it expresses only the mastering desire of another and not that of the person who merely consents to affix his name to the instrument. Goodbar v. Lidikey (1893), 136 Ind. 1, 35 N. E. 691, 43 Am. St. Rep. 296; Slayback v. Witt (1898), 151 Ind. 376, 391, 50 N. E. 27; Ditton v. Hart (1911), 175 Ind. 585, 95 N. E. 119; Wiley v. Gordon (1914), 181 Ind. 252, 267, 104 N. E. 500; Barr v. Sumner (1915), 183 Ind. 402, 423, 107 N. E. 675, 109 N. E. 193.” Deery v. Hall (1933), 96 Ind. App. 683, 175 N. E. 141.

We find no statement in the record that supports the contention of appellee that appellant dictated or wrote the Will of Mildred M. Hobbs, or procured it to be written, or participated in or had anything to do with dictating the provisions thereof. Willett v. Hall (1942), 220 Ind. 310, 41 N. E. 2d 619.

On the question of undue execution the record discloses that the Will in .question was duly admitted to probate. This placed the burden of proving undue execution on the appellee, Richard Banet. The only evidence bearing on the question of undue execution that we find in the record is the statement of Lawrence A. Lord, one of the subscribing witnesses, to the effect that “Mildred’s signature was on the Will when I signed it. I did not see'her sign it.” Admitting this to be true, as we must, the Will could have been duly executed nevertheless if the testatrix had then acknowledged the signature appearing on the Will as her own. The appellee, Richard Banet, who had the burden, failed to prove lack of acknowledgment. In other words, he failed to prove an essential element of his case based on undue execution. Had the case been tried on objections to probate the burden would have been on the appellants and the silence of the record as to acknowledgment would have been fatal to their case.

Judgment reversed and cause remanded with instructions to grant appellants’ motion for new trial.

Kelley, C. J. dissents with opinion to follow. Bowen, J., concurs with dissent.