Opinion
No. 18,050.
Filed January 26, 1951.
1. WILLS — Contest of Will — Action — Motions — Motion To Direct Verdict on Question of Undue Influence. — In an action to contest a will, defendants' oral motion at the conclusion of plaintiffs' evidence that the court instruct the jury to find for the defendants on the issue of undue influence was not a motion to withdraw the question of undue influence from the consideration of the jury, but was in fact a motion for a directed verdict on the question. p. 696.
2. WILLS — Contest of Will — Action — Motions — Motion To Direct Verdict on Question of Undue Influence — Motion Properly Overruled. — In an action to contest a will, it was not error to overrule defendants' motion to direct a verdict in their favor on the question of undue influence because such motion was improper. p. 696.
3. WILLS — Contest of Will — Action — Motions — Motion To Direct Verdict on Question of Undue Influence — Error in Ruling on Motion Waived by Subsequent Introduction of Evidence and Tender of Instructions on Issue. — In an action to contest a will, any error the trial court may have made in overruling defendants' motion, offered at the close of plaintiffs' evidence, to direct a verdict in their favor on the question of undue influence was waived by defendants' subsequent introduction of evidence to support the validity of the will following which defendants failed to renew their motion, and also by defendants' tender of three instructions, given by the court, on the question of undue influence. p. 696.
4. WILLS — Contest of Will — Appeal — Evidence — Weight and Sufficiency — Sufficiency To Sustain Finding of Undue Influence — General Verdict Including Other Issues — Question Not Presented. — On appeal from a judgment in favor of plaintiffs in an action to contest a will based on the theories of undue influence in the execution and that the testatrix was of unsound mind, where any error which might have been committed in presenting the question of undue influence to the jury for consideration was waived by defendants, in view of this and the further fact that there was a general verdict including in its scope the issue of unsoundness of mind, it was unnecessary for the Appellate Court to determine whether or not the evidence in the record was sufficient to support the allegation of undue influence. p. 696.
5. EVIDENCE — Opinion Evidence — Examination of Experts — Hypothetical Questions — Questions Stating Conclusions of Interrogator Improper. — In an action to contest a will, it was not error for the trial court to refuse to permit plaintiffs' expert witnesses to answer a hypothetical question propounded by the defendant when such question was ambiguous and confusing and also set out conclusions of the interrogator rather than facts, even though plaintiffs' objection to the question was not based on these grounds. p. 696.
From the Grant Circuit Court, Oliver D. Clawson, Judge.
Action by Luther Roler and others against Floyd Roler and others to contest the last will and testament of Luella Roler, deceased. From a judgment for the contestants, the proponents appeal.
Affirmed. By the court in banc.
Horace C. Holmes, of Tipton, and Campbell, Gemmill, Browne Ewer, of Marion, for appellants.
Frank B. Russell, of Tipton, and Van Atta, Batton Harker, of Marion, for appellees.
Appellees brought this action against appellants to contest the last will and testament of Luella Roler, deceased. The complaint was in one paragraph and charged (1) that at the time said pretended will was attempted to be executed said decedent was a person of unsound mind; (2) that the execution of said will was procured by undue influence. Trial to a jury resulted in a verdict in favor of appellees. Judgment accordingly.
Under proper assignment of error appellants challenge the judgment on two grounds: First, they say the trial court erred in refusing to withdraw the issue of undue influence from the jury because there was no evidence from which even an inference could be drawn to support this issue.
The record discloses the following:
"at the conclusion of plaintiff's evidence and after plaintiffs have rested their case, the defendants now make an oral motion to the court to instruct the jury to find for the defendants on the issue of undue influence tendered in this case, which motion the court now overrules, to which ruling the defendants at the time except."
In our opinion the above quoted motion of appellants was not a motion to withdraw the question of undue influence from the consideration of the jury, but was in 1-4. fact a motion for a directed verdict on that question. This was not proper and therefore the court did not err in refusing to sustain said motion. Hamling v. Hildebrandt et al. (1948), 119 Ind. App. 22, 81 N.E.2d 603, 605 (Transfer denied), and authorities there cited. Furthermore, if there had been error in this regard it was waived by appellants for each of the following reasons: (1) After this motion was overruled the appellants introduced evidence to support the validity of the will. At the conclusion of all the evidence they did not renew their motion. (2) Appellants tendered three instructions which were given by the court on the subject of what constitutes undue influence. In view of our conclusion on this question and the further fact that there is a general verdict including the issue of unsoundness of mind, it is unnecessary for us to decide whether there was sufficient evidence in the record to support the allegation of undue influence.
The appellants next contend the trial court erred in refusing to permit two of appellees' expert witnesses to answer a hypothetical question propounded by appellants. 5. Substantially the same question was propounded to each witness. We do not believe it would serve any good purpose to set out the question herein. In our opinion the question was ambiguous, confusing, and in certain instances set out conclusions of the interrogator rather than facts. Therefore, we hold the trial court did not err in refusing to require the witnesses to answer the question. This is true even though appellees did not base their objection to the question on these grounds. Eckman v. Funderburg (1915), 183 Ind. 208, 210, 108 N.E. 577; Vandalia Coal Company v. Butler (1918), 68 Ind. App. 245, 258, 119 N.E. 34; 5 C.J.S., p. 1048, § 1739, citing Vandalia Railway Company v. Keys (1910), 46 Ind. App. 353, 369, 91 N.E. 173 (Transfer denied).
Finding no reversible error, the judgment is affirmed.
NOTE. — Reported in 96 N.E.2d 284.