Opinion
No. 14,088.
Filed March 6, 1931.
1. WILLS — Objections to Probate — Proponents Must Make Prima Facie Case. — Where objections are made to the probate of a will, the proponents of the will are required to make a prima facie case upon all the material issues raised by the pleadings. p. 291.
2. WILLS — Objections to Probate — Failure to Prove Execution of Will — Directing Verdict for Defendants Not Error. — In a proceeding to probate a will, objections to probate having been filed, the court properly directed a verdict for the defendants where the proponents failed to prove the due execution of the will. p. 291.
From Marion Probate Court (2,379); Mahlon E. Bash, Judge.
Elizabeth Todd filed objections to the probate of a will purporting to have been executed by William P. Todd, and Alice Craney and another presented the will for probate. From a judgment denying probate, the proponents of the will appealed. Affirmed. By the court in banc.
R.L. Bailey and W.S. Henry, for appellants.
Robert Lee Brokenburr, for appellee.
This action was instituted by Elizabeth Todd, widow of the late William P. Todd, deceased, by filing objections to the probation of a pretended will of the decedent. Afterwards, she filed her complaint to resist the admission to probate and alleged: (1) That the decedent, at the time the pretended will purports to have been executed, was of unsound mind and incapable of making a will; (2) that the pretended will was never executed. Trial was before a jury. At the close of appellants' evidence in chief, the appellee, plaintiff below, moved the court for an instructed verdict, which motion was sustained by the court, and the jury returned a verdict for the appellee. The error relied upon for reversal is the overruling of the motion for a new trial and the several causes presented are: (1) Error of the court in instructing the jury to return a verdict for the plaintiff; (2) error in the exclusion of certain evidence, to wit, the alleged will of William P. Todd; (3) the verdict of the jury is contrary to law.
The only error which it is necessary for us to consider is the action of the court in instructing the jury to return a verdict for the appellee.
The Supreme Court, in Harbison v. Boyd (1911), 177 Ind. 267, 96 N.E. 1009, said: "The proponents on the trial were required, in the first instance, to make a prima facie 1. case only, upon all the material issues raised by the pleadings." See Hoffbauer v. Morgan (1909), 172 Ind. 273, 88 N.E. 337. Steinkuehler v. Wempner (1907), 169 Ind. 154, 81 N.E. 482, 15 L.R.A. (N.S.) 673; Johnson v. Banker (1923), 193 Ind. 16, 138 N.E. 505.
The evidence in this case fails to establish a prima facie case in favor of the proponents of the will, in that due execution of the pretended will is not proved. Reed v. 2. Watson (1867), 27 Ind. 443; Danville Trust Co. v. Barnett (1916), 184 Ind. 696, 111 N.E. 429.
The court did not err in instructing the jury to return a verdict for the appellee.
Judgment affirmed.