Johnson v. Samuels-186 Ind. 56.

ment of the assignment of errors, which was made by leave of this court upon what was determined at 2. the time to be a proper showing. It is insisted

by appellees that, because of such amendment, which consisted in making the heirs and personal representatives of Mary Samuels parties appellee after the expiration of 180 days from the date of the judgment, therefore, appellants are not in court. As was said in Bruiletts Creek Coal Co. v. Pomatto, supra, in quoting from Sawyer-Wallace & Co. v. Fuqua (1842), 20 Ky. L. Rep. 1, 41 S. W. 15, 46 S. W. 209: "His death operated only to transfer the judgment to his personal representatives or to his heirs or legatees who are bound to take such action as might be deemed appropriate to protect their interest. * * The fact that an appellee

*

died before the transcript was filed did not vitiate the appeal, but merely rendered a revivor necessary. This court had jurisdiction of the appeal granted by the circuit court. The revivor did not bring in a new party in interest. It merely brought in new representatives of an interest already before the court. * The granting of the appeal by the circuit court was notice to the decedent in this cause, and brought him before this court, though it was incumbent on appellant to file the transcript, of which Dean was required to take notice, if living, but which was required to be revived. against his personal representatives should he die."

It is further insisted that the original assignments of error were joint, while the record shows that the motion for a new trial was "separate and several," and the exceptions to the ruling of the court on the motion for a new trial was also "separate and several."

While this court has in some cases held that such an assignment presents no question for our consid3. eration, we are of the opinion that such holdings were not intended to apply to a case such as this

Johnson v. Samuels-186 Ind. 56.

one, where the ruling affects all alike, especially where the action is in rem and is in effect that all parties moving for a new trial excepted to the ruling of the court. It seems to the writer of this opinion that this rule is highly technical, to say the least, and serves more to confound than otherwise and should be abrogated entirely. If all persons against whom a verdict has been returned file a motion for a new trial assigning the same causes therefor, either jointly or severally, and a ruling is had and exceptions taken by all parties against whom the ruling is made, either jointly or severally, the question is presented to this court on an assignment of errors, whether made by one or all of the parties excepting to such ruling, either in a joint or a separate assignment.

The questions presented by the assignment of errors, relate to the giving of instructions, the refusal to give instructions tendered by appellants, and the rulings on the admission of evidence.

The first instruction complained of is instruction No. 2 given by the court on its own motion. This instruction is as follows: "No evidence having been 4. offered to the jury on the question of whether or not the alleged will was executed under duress, or that it was obtained by fraud, I instruct you that upon those two issues made by the pleadings, your finding should be for the proponents or defendants. Therefore the only remaining issues for you to determine are, was the alleged will duly executed, and was the said Samuels a person of sound mind at the time, or was he unduly influenced to execute the same.'

The court in the trial of this case held, and rightfully we think, that the burden of proof was upon the proponents of the will and not on plaintiffs (appellants) and gave the proponents and defendants (appellees) the opening and closing of the evidence and argument.

Johnson v. Samuels-186 Ind. 56.

Appellees, having the burden, should have established at least a prima facie case by showing by some evidence all the essential facts necessary to the validity of the will in question. Of the questions put in issue by the objections to the probate of the will were the following: (1) That said pretended will was executed under duress; (2) that said pretended will was obtained by fraud. On the issues thus formed the burden was imposed upon appellees to produce some evidence at least enough to make out a prima facie case-before they were entitled to have the will admitted to probate, even though there had been no evidence to the contrary on the part of appellants. This instruction had the effect of telling the jury that the burden had shifted to appellants on those issues.

Whoever asserts a right dependent for its existence upon a negative must establish the truth of the negative by a preponderance of the evidence. Steinkuehler v. Wempner (1907), 169 Ind. 154, and cases cited on page 160, 81 N. E. 482, 15 L. R. A. (N. S.) 673. It is true that the latter clause of instruction No. 2 and 5. other instructions told the jury that the burden was on appellees to establish by a preponderance of the evidence that the will was not unduly executed and that testator was not unduly influenced to execute the same. But this does not cure the error committed in giving the erroneous instruction. The only manner in which the court may obviate the error in giving an improper instruction is to withdraw the erroneous in

struction. If by an instruction the burden of 6. proof is placed on the wrong party the judgment will be reversed. Hunt v. Osborn (1907), 40 Ind. App. 646, 82 N. E. 933; Holliday & Wyon Co. V. O'Donnell (1913), 54 Ind. App. 95, and cases cited on page 104, 101 N. E. 642; Evansville, etc., R. Co. v. Hoffman (1914), 56 Ind. App. 530, 536, 105 N. E. 788;

Johnson v. Samuels-186 Ind. 56.

Roller v. Kling (1897), 150 Ind. 159, 49 N. E. 948; Chicago, etc., R. Co. v. Glover (1899), 154 Ind. 584, 57 N. E. 244. Instruction No. 4 is erroneous for the same reason. It, too, tells the jury that the burden is on plaintiffs, appellants.

Appellants contend that instruction No. 17 was erroneous for the reason that it confines the undue influence, if any, to appellees, defendants. The part com7. plained of is as follows: "So in this case if you find that at the time John Samuels signed the alleged will, he was not under the influence of the defendants in this action or either of them to the extent and in the way and manner herein stated, then such will would not be void on the grounds of undue influence."

As was said in Barr v. Sumner (1915), 183 Ind. 402, 419, 107 N. E. 675, 681: "While undue influence is generally exerted by the beneficiary, yet a will may be invalidated because of undue influence of which the beneficiary was ignorant," citing Page on Wills, §129; and we are of the opinion that the instruction was erroneous in limiting the undue influence to defendants, appellees.

Appellants complain that the court erred in refusing to give their instruction No. 25. This instruction reads as follows: "Certain evidence has been admitted 8. herein in regard to statements alleged to have been made by some of the plaintiffs in this cause to the effect that they expected to get, or intended to get, a share of the land heretofore deeded by John Samuels to his son, John McKinley Samuels. If you find that such statements were in fact made, you may consider them only on the question of the interest, or credibility of such plaintiffs when testifying in this case, and cannot be considered by you as evidence on any issue of unsoundness of mind of the testator, nor upon

Johnson v. Samuels-186 Ind. 56.

the question of the presence or absence of undue influence in the execution of the alleged will of John Samuels, nor upon the question as to whether the instrument in suit was duly executed as the last will and testament of John Samuels; nor can it be considered in connection with the said deed for the purpose of determining the validity or lack of validity thereof, for the reason that the validity of such deed is not in issue here, and the result in this case will in no way affect the validity of such deed."

There was introduced in evidence, over the objections of appellants, the testimony of the county recorder of Tipton county-a conversation with one of the appellants in relation to securing from him, the recorder, a certified copy of a certain deed made by the testator prior to the time of making the will in question-which was allowed to remain in the record, notwithstanding appellants' motion to strike it out. While it is doubtful whether such testimony was competent for any purpose, appellees evidently offered it to show the interest of the party as a witness, and it should have been confined to that object, and the instruction should have been given. The testimony certainly had no bearing on the sanity of testator, nor did it relate to any issue tendered by the pleadings, and was not in contradiction of any statement made by the witness while testifying in this case. But having admitted it for the purpose of showing the interest of the witness, it should have been limited to that purpose, which the instruction tendered would have done.

In the trial of the cause one Joseph Townsend was offered as a witness and testified that he had known the decedent for thirty years and related some con9. versations he had had with him. He stated, as his opinion, that decedent was not of sound mind all of the time. On cross-examination he was also