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Jones et al. v. Casler.

the court, having expired, the bill was not properly filed.

We have the following provision in section 638, R. S. 1894, section 626, R. S. 1881: "The party objecting to the decision must except at the time the decision is made; but time may be given to reduce the exception to writing, but not beyond the term, unless by special leave of court. Provided, That if a motion for a new trial shall be filed in a cause in which such decision, so excepted to, is assigned as a reason for a new trial, such motion shall carry such decision and exception forward to the time of ruling on such motion."

The allowance of time by the court did not, and could not, operate to deny the right expressly given by the


In discussing the sufficiency of the evidence to sustain the verdict, it is insisted that under section 2609, R. S. 1881, above quoted, some two witnesses must concur in their evidence of the entire contents of the alleged destroyed will, so that the instrument can be reproduced in writing and be written at full length upon the records of probate.

While conceding that courts of respectable authority have so held, we have already indicated our conclusion that proof of the substance of the provisions of the will is all that can reasonably be required, and as to the word provisions, employed in our statute, we do not understand that it was intended to comprehend all of the terms of the will, including the appointment of execu tors, the revocation of former wills and the like, but, that it was intended to include only those provisions which conferred some property right upon devisees or legatees. See Wallis v. Wallis, 114 Mass. 510; Sheridan v. Houghton, 6 Abb. N. C. 234; Vining v. Hall, 40 Miss. 83. So much of the will would enable the court to judge

Jones et al. v. Casler.

not only of the testamentary intentions of the testator, but to give the will its proper legal construction. No more could be reasonably required.

There are cases which hold that if the devises are proven only in part those which are proven satisfactorily may be probated. Dickey v. Malechi, 6 Mo. 177; 34 Am. Dec. 130; Burge v. Hamilton, 72 Ga. 568; Skeggs v. Horton, 82 Ala. 352; Dower v. Seeds, 28 W. Va. 112. It is not essential to our conclusion, that we should adopt this rule in its application to both lost and fraudulently destroyed wills, but it can not be objected by a spoliator, who has destroyed the evidence of provisions which may benefit him, that the provisions which have been proven according to law shall not be effective, and this should be especially true where it does not appear that provisions not so fully established would probably modify those provisions which are fully established.

That there was a will executed July 17, 1888, there can be no possible doubt; that Jacob Jones caused a will to be burned, after his wife died, the jury were fully authorized to find from the evidence; that it was the will so executed, was supported by evidence, both positive and circumstantial; that the will devised a life estate to Jacob Jones is proven by at least three witnesses whose evidence varies only in the expression of that interest; that the fee was devised to the appellee was the reasonable inference from, and construction of, the evidence of three witnesses. It is true that the evidence of the three witnesses does not concur as to the conditions upon which the appellee was to take the fee in the whole of the lands, one stating that the will gave Jacob Jones the option of taking the land and giving to the appellee twelve hundred dollars, a provision not remembered by any other witness. Two of the witnesses agree that the will gave the fee to the appellee upon the condition that the testa

Jones et al. v. Casler.

trix had no child which should survive Jacob Jones. There was some difference in the remembrance of the witnesses as to an additional provision of one hundred dollars for the appellee, and as to whether, in addition to the fee, the appellee was to have, with Jacob Jones, a life estate in the land. Two of the witnesses agree that in the event of a child of the testatrix surviving her husband, that child was to share equally the fee with the appellee. In considering the evidence as we have stated it, we have selected such parts of the evidence of the various witnesses as was found most favorable to the conclusions we have stated. This we understand to have been the privilege of the jury, and we are not at liberty to set up the trivial inconsistencies in the evidence of any one witness as neutralizing that which supports the verdict. We may say, therefore, that the provisions of the will as alleged in the complaint, and as returned by the jury had the united support of two witnesses whose credibility was passed upon by the jury, and is not in review in this court.

The argument is made that the evidence does not prove a search and failure to find the will, and that if it had, the legal presumption must arise that the will was destroyed by the testatrix animo revocandi. The theory of the case was not that the will was lost, but that it was destroyed after the death of the testatrix; search, therefore, was not consistent with that theory, and the burden was assumed by the appellee and discharged by the evidence, that the will was destroyed, not by the testatrix with the intention to revoke it, but by another.

Complaint is made that the court charged the jury that if they found any fact established by a preponderance of the evidence they should state such fact in the special verdict. It was also charged that provisions of the will

Jones et al. v. Casler.

should be clearly proven by two witnesses or by a copy of the will and one witness.

It is not a just criticism of the first of said two charges that the jury were directed to find the provisions of the will upon a mere preponderance of the evidence regardless of the number of witnesses testifying thereto. The jury could not have failed to understand that while two witnesses were necessary, nevertheless it required a preponderance of the evidence, and that such facts as were so supported should be returned.

An instruction asked by the appellant, that all of the contents of the will should be proven, was modified to direct that the substantial contents of said will should be proven. This modification, in view of what we have already said, was not erroneous.

An instruction in the following language was given: "I instruct you that when witnesses are otherwise equally credible and their testimony otherwise entitled to equal weight, greater weight and credit should be given to those whose means of information were superior; and, also, to those who swear affirmatively to a fact, rather than to those who swear negatively, or to a want of knowledge or a want of recollection."

This instruction was copied from Sackett's Instructions to Juries, p. 33, and Blizzard v. Applegate, 61 Ind. 368, is cited by the author in its support.

The instruction reviewed in the case cited did not so clearly invade the province of the jury as that given by the author, yet it was held to have been improper. The weight to be given to the testimony of any witness or class of witnesses is always a question for the jury and it is never proper to charge the jury, as a matter of law, that any witness or class of witnesses shall be received with greater consideration than any other. Woollen v. Whitacre, 91 Ind. 502; Cline v. Lindsey, 110 Ind. 337;

Cole v. Gray et al.

Durham v. Smith, 120 Ind. 463; Duvall v. Kenton, 127
Ind. 178.

For the error in the charge given, the judgment of the circuit court is reversed.

DAILEY, J., did not participate in considering this appeal.

Filed Nov. 13, 1894.

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No. 16,982.


QUIETING TITLE.-Complaint.—Demurrer.—A complaint in the usual
form to quiet title to real estate, which alleges that the defendants
have no interest in the property, and no lien of any kind thereon,
is not rendered bad on demurrer because it appears by subsequent
pleadings and the evidence that the defendant held a valid lien for
taxes paid.
SAME.-Deed.-Can not be Varied by Parol.-Tax Lien.—Transferred by
Deed Notwithstanding Oral Agreement.-A deed can not be contra-
dicted, changed or modified by previous or contemporaneous oral
negotiations, stipulations or agreements inconsistent with its terms;
and so where the vendee of the holder of an invalid tax deed
seeks to enforce the lien given by statute, an answer that at the
time of taking his conveyance from the holder of the tax deed the
plaintiff and his grantor had agreed that such conveyance should
not transfer either the title or the lien for taxes, but should merely
operate as a release of the lien, and that subsequently the defend-
ant had paid to the plaintiff's grantor the full amount due on ac-
count of the tax sale and taken to himself a quitclaim deed, is bad.
SAME.-Redemption from Tax Sale.-Recorded Deed.-Notice.-In mak-
ing redemption from a tax sale the owner is bound to know, where
a conveyance from the holder of a tax deed to a third person is up-
on record, that such conveyance carried to the grantee the pur-
chaser's lien.

From the Tipton Circuit Court.

R. N. Lamb and R. Hill, for appellant.

G. Shirts and I. A. Kilbourne, for appellees.

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