— A writing purporting to be the last will of John Puckett, deceased, was tendered for probate in the circuit court of Tipton county by appellants. Appellee, a daughter of John Puckett, filed objections to such probate on the ground that the execution of the will was obtained by undue influence, and also on the ground that John Puckett was of unsound mind at the time he executed the writing in question. At the conclusion of the evidence in opposition to the probate of the will, the proponent filed a motion for an order of court withdrawing the issue of undue influence from the consideration of the jury on the ground that there was no evidence to sustain such issue. Appellee consented that the motion might be sustained, whereupon the court withdrew from the further consideration of the jury the issue based on the allegation of undue influence in the
Appellants claim that some of the instructions to the jury were erroneous and prejudicial to their rights. The thirteenth instruction given by the court of its own motion is as follows: “When a man dies leaving no wife surviving him, but leaves children and their descendants surviving him, the law would ordinarily recognize such children and their descendants as natural objects of his bounty'when he executes his last will and testament, and if, without any reason, he either wholly or to any considerable extent disinherits any of the natural- objects of his bounty, such conduct upon the part of the testator becomes a part of the evidence which the jury trying a will • contest, such as this case, have the right to consider along with all of the other evidence in the case upon the issue of unsoundness of mind. If, therefore, you find from the evidence in this case, that at the time the instrument in question was executed by the decedent, John Puckett, he was the owner of an estate both real and personal, and left surviving him, among others, the plaintiff, Olive A. Folsom, his daughter, and you further find from the evidence that at the time of executing said instrument, the alleged will in question, there was no reason why he should, in disposing of his estate, discriminate against her, and you further find from the evidence that the alleged will does discriminate against her to any considerable extent, you may take that fact, if it be a fact, into consideration
1. The majority of the court holds that this instruction does not correctly state the law for the reason that it • informs the jury, as a matter of law, that the children of a testator and the descendants of such of his children as are dead, are the natural objects of his bounty, where he dies leaving no widow. In so holding the court adheres to the previous decision of this court in the case of Breadheft v. Cleveland (1915), 184 Ind. 130, 108 N. E. 5, 110 N. E. 662. In that case it was held that it was not the province of the court to determine and state to the jury what persons were the natural objects of a testator’s bounty in any case or under any state of facts; but that, in all cases, the jury should be permitted to find as a fact what persons were the natural objects of the testator’s bounty. The giving of an instruction similar to the thirteenth instruction given in this case was held to be reversible error in the case of Breadheft v. Cleveland, supra, and an adherence to the rule there announced necessarily requires a reversal of the judgment in this case.
The writer of this opinion was unable to assent to the rule announced in the case of Breadheft v. Cleveland, supra, and a further consideration of the question has
By the tenth instruction the jury were instructed on the subject of insane delusions and the effect of such delusions, if shown, on the will of testator. Appellant asserts that this instruction should not have been given for the reason that there was no evidence from which
2. Some of the witnesses introduced on behalf of appellees were parties to the action, either as heirs of the testator or as devisees under his will. In an action to contest a will it has been held that such witnesses are competent to testify as to matters which occurred during the lifetime of the testator, notwithstanding the provision of §522 Burns 1914, §499 R. S.* 1881, but the testimony of such witnesses must be limited to such matters as were open to all of the friends and acquaintances of the deceased ancestor. Lamb v. Lamb (1886), 105 Ind. 456, 5 N. E. 171. In the case cited it was held that such witnesses were competent to testify as to the mental soundness of the testator and in so doing that they might testify to his acts, conduct and conversations as bearing upon that subject. Appellants’ counsel concede the rule as stated, but. they assert that the testimony to which they object as given by these witnesses had no bearing on the question of the soundness of mind of the testator and should have been excluded for that reason. It would be difficult for a court to say as a matter of law that any particular act or conversation of a testator concerning which evidence may be offered could have no bearing on the question of his soundness, of mind. In so far as the evidence by these witnesses related to the conduct and demeanor, the acts and conversations of the testator, they were competent.
Other questions presented may not arise on a retrial and, for that reason, they are not considered. Judgment reversed for error of the court in giving instruction No. 13, with instructions to sustain appellants’ motion for a new trial.
Myers, J., concurs in the personal views expressed by the writer of the opinion.
Note. — Reported in. 118 N. E. 955. Witnesses: statutes prohibiting a witness from testifying to a transaction with decedent, applicability to proceedings to probate or contest wills, Ann. Cas. 1914A 982. See under (1) 40 Cyc 1331,- (2) 40 Cyc 2322; (3, 4) 17 Cyc 209.