cause of undue influence exercised by others and of which the beneficiary is ignorant. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 375, 379; Dec. Dig. 155(1).] 8. TRIAL 207 — ACTIONS TO CONTEST -INSTRUCTION-PURPOSE OF EVIDENCE. In a will case, refusal of an instruction confining evidence of alleged statements of contestants that they expected a share of lands which had been deeded by the testator to his son, to the purpose of showing the interest of the witness, was error. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 498, 499, 501; Dec. Dig. 207.] 9. WITNESSES 398(3) IMPEACHMENT STATEMENTS OUT OF COURT-CROSS-EXAMI NATION. 1 Where a witness on cross-examination denied that he had stated to another witness that the mother of the latter would receive $25 if she testified that testator was of unsound mind, the admission of testimony in rebuttal to show that such conversation took place was error, since a witness can only be impeached by proof of statements out of court contrary to the testimony of the witness when such testimony relates to a material matter in issue, and a party allowed, in the discretion of the court, to crossexamine a witness as to specific extraneous offenses calculated to impair his credibility, is bound by the answer the witness gives. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1275; Dec. Dig. 398(3).] 10. WILLS PROBATE. 790-ELECTION-TIME-BEFORE Burns' Ann. St. 1914, § 3025, provides as to personal property a widow may within 90 days after the probate of a will elect to take under the will instead of law. Section 3043 provides that a widow may within one year after the probate of a will elect to take under the law rather than the provisions of the will. Held that, as no election is authorized to be made until after the will is admitted to probate, a written election of the widow to take under the law was not admissible in an action to contest the probate of the will. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 2043-2048; Dec. Dig. 790.] 11. WITNESSES 359-IMPEACHMENT OTHER OFFENSES. In a will case, where a witness on crossexamination admitted a certain prosecution against her, records of the court in such prosecution showing the return of an indictment against her and her husband, who was not a party to the action, a trial by jury, a verdict and motion for new trial, which was granted, and a dismissal of the case by the state, were not admissible. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1161, 1162; Dec. Dig. 359.] Appeal from Circuit Court, Clinton County; Joseph Combs, Judge. Action by Mary J. Johnson and others to resist the probate of the will of John Samuels, deceased, proposed by Mary Samuels and others. Judgment establishing the validity of the will, contestants' motion for new trial overruled, and contestants appeal. Judgment reversed, with instructions to grant motion for new trial. Gifford & Gifford and Jesse R. Coleman, all of Tipton, and Kent & Ryan, of Frankfort, for appellants. Strawn & Robison, of Frankfort, and Kemp & Kemp, of Tipton, for appellees. ERWIN, J. This action was brought by appellants to resist the probate of the will of John Samuels, deceased. Trial was had by a jury, and a verdict returned in favor of the validity of the will. The assignment of errors presents but one primary question, to wit, overruling appellants' motion for a new trial. The motion for a new trial contains many reasons, therefore, not all of which are urged by appellants. We are met at the threshold of this case with a motion to dismiss this appeal, which motion is based on the grounds that after an appeal had been granted by the trial court, and before the time which the court had given appellants to file their bond, the appellee Mary Samuels died, and that, appellants not having filed assignment of errors in this court with the heirs and personal representatives of said Mary Samuels as appellees, therefore this cause should be dismissed for failure to make proper parties appellee. It is proper to state here that this was a term time appeal, prayed and granted and time given to perfect the same by filing in the lifetime of appellee Mary Samuels. bills of exceptions and bond, all of which were done within the time allowed by the trial court. We are of the opinion that the case of Bruilette Creek Coal Co. v. Pomatto, 172 Ind. 288, 88 N. E. 606, is decisive of the question here presented. [1] When an appeal is prayed in term and time given to file bills of exceptions and bond, the filing of the bond relates back to the date the appeal is granted and the time fixed for filing the bond, and if the transcript is filed in this court within 180 days from the date of the judgment, and within 60 days from the filing of the bond, then the appeal is perfected within the time required by law, and appellee has all the notice the law requires to be given. If appellee dies after the appeal is prayed and before the filing of the transcript in this court, the heirs and personal representatives are required to take notice of such appeal, and it is not incumbent on appellant to give further notice of his intention to appeal. Bruilette Creek Coal Co. v. Pomatto, supra. An assignment of errors with the prevailing party as appellee is sufficient, and is all that is required of appellant. [2] Another cause for dismissal is based on the amendment of the assignment of errors which was made by leave of this court upon what was determined at 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, and after the expiration of 180 days from the date of the judgment, therefore appellants are not in court. As was said in Bruilette Creek Coal Co. v. Pomatto, supra, quoting from Sawyer-Wallace & Co. v. Fuqua, 41 S. W. 15, 46 S. W. 209, 20 Ky. proof was upon the proponents of the will, Law Rep. 1: and not on plaintiffs, appellants, and gave "His death operated only to transfer the appellees, proponents and defendants, the judgment to his personal representative or to opening and closing of the evidence and arhis heirs or legatees, who are bound to take such action as might be deemed appro at least establish a prima facie case by showgument. Appellees, having the burden, must priate to protect their interest. ing by some evidence all the essential facts necessary to the validity of the will in ques * "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 a new representative of an interest already before the * The granting of the appeal by the circuit court was notice to the decedent in this case, 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 representative court. should he die." " It is further insisted that the original assignment of errors was 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." [3] While this court has in some cases held that such an assignment presents no question for our consideration, we are of the opinion that such holdings were not intended to apply to a case such as this 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 served more to confound than otherwise and should be abrogated entirely. If all persons against whom a verdict is 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 separate assignment. The questions presented by the assignment of errors relate to the giving of instructions, the refusing to give instructions tendered by appellants, and rulings on the admission of evidence. [4] 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 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 findings 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 tion. 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 is imposed upon appellees to produce some evidence, at least enough to make out a prima facie case, before they would be 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 the effect of telling the jury that the burden had shifted to appellants on those issues. had 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, 169 Ind. 154, and cases cited on page 160, 81 N. E. 482, 15 L. R. A. (N. S.) 673. [5, 6] It is true that the later clause of instruction No. 2 and other instructions tells the jury that the burden is 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 instruction. If by an instruction the burden of proof is placed on the wrong party, the judgment will be reversed. Hunt v. Osborn, 40 Ind. App. 646, 82 N. E. 933; Holliday & Wyon Co. v. O'Donnell, 54 Ind. App. 95, and cases cited on page 104, 101 N. E. 642; Evansville, etc., R. Co. v. Hoffman, 56 Ind. App. 530, 536, 105 N. E. 788; Roller v. Kling, 150 Ind. 159, 49 N. E. 948; Chicago, etc., R. Co. v. Glover, 154 Ind. 584, 57 N. E. 244. Instruction 4 is erroneous for the same It, too, tells the jury that the burden is on plaintiffs, appellants. reason. [7] Appellants contend that instruction 17 was erroneous for the reason that it confines the undue influence, if any, to appellees, defendants. The part complained 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, 183 Ind. 402, 419, 107 N. E. 675, 681: "While undue influence is generally exerted by the beneficiary, yet a will may be invalid because of undue influence of which the benefi- that she gets $25 out of it,' or words to that ciary was ignorant"-citing Page on Wills, 129. | effect." 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 instruction No. 25. This instruction reads as follows: This question was answered in the negative. Appellees in rebuttal called Benjamin Lawhorn and offered to show that such conversation took place between the witness and Townsend. Proper objections were made to this question, which were overruled, and the witness was allowed to state that such a conversation was had with Townsend. This was error; for in this state the rule is well established that a witness can only be of court contrary to the testimony of the witness, when such testimony relates to a material matter in issue. Pape v. Lathrop, 18 Ind. App. 633, and cases cited on page 650, 46 N. E. 154; Miller v. State, 174 Ind. 255, and cases cited on page 261, 91 N. E. 930. "Certain evidence has been admitted 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 Sam-impeached by proof of statements made out uels. 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 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 there of, 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." [8] There was introduced in evidence over the objections of appellant the testimony of the county recorder of Tipton county, a conversation with one of the appellants in re lation 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, and it was allowed to remain in the record, notwithstanding appel "The court may in its discretion nermit a witness on cross-examination to be interrogated as to specific, extraneous offenses and conduct calculated to degrade him, and thus impair his credibility as a witness. But in every such case the party propounding the interrogatory is bound by the answer the witness gives, and will not be permitted to introduce substantive evidence to contradict it." Dunn v. State, 162 Ind. 174, 182, 70 N. E. 521, 524; Rock v. State, 184 Ind. 110 N. E. 212, 213. in evidence a written instrument which in lants' 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 contradic-ment had no proper place in the evidence, tion 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. [9] In the trial of the cause one Joseph Townsend was offered as a witness and testified he had known the decedent 30 years and related some conversations he had had with him and gave it as his opinion that decedent was not of sound mind all of the time. On cross-examination he was also asked, over the objections of appellants, the following questions: "Did you not go to the home of Susan and Benjamin Lawhorn in Tipton, Ind., on or about the 21st of February 1914, and state to the son Benjamin Lawhorn in the woodshed, I would like to know what you folks think about the Samuels case,' and then and there further state to him that, 'If your mother will swear that John Samuels was of unsound mind, I will see [10] We are of the opinion that this instru for the reason that no election is authorized to be made until after the will is admitted to probate. Section 3025, Burns 1914, provides as to personal property that the widow may within 90 days after the probate of a wil elect to take under the will instead of the law. Section 3043, Burns 1914, provides that the widow may within one year after the probate of a will elect to take under the law rather than the provision of the will. Any election made prior to the probate of the will could have no bearing on the validity of the will, and hence had no force in supporting it. [11] Sarah Magnet, one of the appellants, was a witness in this cause. On cross-exami nation she was asked as to a certain prosecution against her which she admitted. Appellees introduced in rebuttal the records of the Tipton circuit court showing the return of an indictment against her and her husband (who was not a party to this action), trial by jury, a verdict and a motion for a new trial on the part of this witness which was granted, and a dismissal of the case by the state. No final judgment was rendered against her. This record should not have been intruduced. What we have heretofore said about the introduction of collateral matters in evidence is applicable here. For the errors herein enumerated, the judgment is reversed, with instructions to the court to grant appellants' motion for a new trial. (63 Ind. App. 591) "I, Charles M. Poston, of Seymour, in the county of Jackson and state of Indiana, employed in the service of the Baltimore & Ohio Railroad as engineman in the conducting transportation department, Indiana division, do hereby, as one of the conditions of such employment, apply for membership in the relief feature, and consent and agree to be bound by all the regulations of the relief department now in force, and by any other regulations of said department hereafter. * I further agree that in consideration of the contributions of said company to the relief department, and of the guaranty by it of the payments of the benefits aforesaid, the acceptance of benefits from the said relief department for injury or death, shall operate as a release of all claims against * BALTIMORE & O. S. W. R. CO. v. POSTON. said company or any company owning or oper (No. 9184.) ating its branches or division, or any company over whose railroad right of way or property (Appellate Court of Indiana, Division No. 2. the said the Baltimore & Ohio Railroad Com Feb. 1, 1917.) MASTER AND SERVANT 100(1)-INJURY TO Appeal from Circuit Court, Lawrence Action by Charles M. Poston against the Baltimore & Ohio Southwestern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. pany shall have the right to run or operate its formance of their duty, for damages by reason engine or cars or send its employés in the perof such injury or death, which could be made by or through me; and that the superintendent may require, as a condition precedent to the payment of such benefits, that all acts by him full release and discharge of the said companies deemed appropriate or necessary to effect the from all such claims, be done by those who might bring suit for damages by reason of such injury or death; and also, that the bringing of such a suit by me, my beneficiary or legal representative or for the use of my beneficiary alone or with others, or the payment of any of the companies aforesaid of damages for such injury or death recovered in any suit or determined by compromise, or of any costs incurred therein, shall operate as a release in full to the relief department of all claims by reason of my membership therein." Under the construction placed on said act, Gardiner, Tharp & Gardiner, of Washing- the contract, under which the dues which apton, Ind., R. N. Palmer, of Bedford, and Ed- pellee paid and now seeks to recover, was in ward Barton, of Cincinnati, Ohio, for appel-direct violation of its terms, and therefore lant. Giles & Doman, of Mitchell, for appel lee. IBACH, P. J. This is a suit by appellee to recover certain dues paid to appellant's relief department. The theory of the complaint is that the contract under which such dues were paid is in violation of the act of 1907 (Acts 1907, p. 46), being section 5308, Burns 1914. void. Wells v. Vandalia R. Co., 56 Ind. App. 211, 103 N. E. 360; Boes v. Grand Rapids, etc., R. Co., 59 Ind. App. 271, 108 N. E. 174; Acton v. Baltimore & Ohio Southwestern R. Co., 59 Ind. App. 280, 108 N. E. 535, 109 N. E. 411. Upon the authority of these cases, the judgment is affirmed. (63 Ind. App. 594) HOOSIER CONST. CÓ. v. SEIBERT 1. JUDGMENT Feb. 2, 1917.) 551-CONCLUSIVENESS-RES Appellant, to sustain the errors assigned, contends that the by-laws of its relief de- (Appellate Court of Indiana, Division No. 2. partment contain no provisions obnoxious to the act of 1907, supra; that appellee voluntarily became a member of its relief department and paid his dues and at different times accepted benefits from such department; that the contract set out in the complaint in no wise seeks to prevent or restrain appellee from maintaining an action for injury or death predicated on the negligence or wrongful conduct of the company. Other contentions are made, but those indicated are sufficient to present the controlling question. The application by which appellee became a member of such relief department, the form of which is provided by regulation No. 17 of such department, reads in part as follows: A judgment in an injunction suit to prevent a public improvement, declaring the prothe Supreme Court, is controlling on the invaceedings void, which judgment was approved by lidity of the proceedings where that question is raised in subsequent suit by the contractor to enforce a lien for the work done. PROCEDURE Cent. Dig. 88 995, 996; Dec. Dig. 551.] [Ed. Note.-For other cases, see Municipal For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes 3. MUNICIPAL CORPORATIONS 324-PUBLIC | against George W. Seibert. Judgment for IMPROVEMENTS PROCEEDINGS INFIRMI defendant on plaintiff's refusal to plead furTIES-COLLATERAL ATTACK. Where infirmity appears upon the face of the proceedings for a public improvement, the proceedings are susceptible to collateral attack. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 847-849; Dec. Dig. 324.] 4. MUNICIPAL CORPORATIONS 488, 489(10) PUBLIC IMPROVEMENTS - ASSESSMENTS ESTOPPEL TO QUESTION. As a general rule, where a property owner stands by without objection to improvements which benefit his property, he cannot defeat the assessment against his property for the benefits derived. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1150-1152; Dec. Dig. 488, 489(10).] ther after demurrer to the answer was overruled, and demurrer to the reply was sustained, and plaintiff appeals. Affirmed. Wm. F. Elliott and Clarence A. Kenyon. both of Indianapolis, for appellant. Joseph B. Kealing and Martin M. Hugg, both of Indianapolis, for appellee. CALDWELL, J. This appeal presents for examination the same public work as is involved in Seibert v. City, 40 Ind. App. 296, 81 N. E. 99. Appellant here was contractor in the construction of such work, the improvement of a designated portion of State avenue in the city of Indianapolis. AppelWhere invalidity of public improvement pro- lee is the owner of certain real estate abutceedings appears, the contractor seeking to en- ting on the work, which real estate was liaforce a lien for the work has the burden to al-ble to assessment for the improvement of lege facts estopping the owner from questioning the assessment. the avenue. Appellant brought this action 5. MUNICIPAL CORPORATIONS 568(1)-BURDEN OF PROOF. [Ed. Note.-For other cases, see Municipal Cor- to foreclose a street improvement assessporations, Cent.Dig. § 1282; Dec. Dig. 568(1).] ment lien, based on said work. The com6. ESTOPPEL 112 PLEADING CIENCY. SUFFI No intendments are made in favor of a plea of estoppel, and the pleader must plead fully all the facts essential to it. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 302; Dec. Dig. 112.] 7. MUNICIPAL CORPORATIONS 567(4)-PUB LIC IMPROVEMENTS SPECIAL ASSESSMENTS— In an action to enforce a lien of a contrac- plaint contains, in addition to the usual averments of a complaint of this sort, allegations to the effect that appellee stood by without objection, and with knowledge permitted and induced appellant to perform labor and expend large sums of money in prosecuting and completing the work under the contract. Appellant's demurrer to appellee's answer was overruled, and appellee's demurrer to appellant's reply was sustained, where upon judgment was rendered against appellant that it take nothing, for failure and refusal to plead further. Appellant assigns error on the ruling on the two demurrers. The material part of the answer is, in substance, as follows: June 28, 1905, the 8. MUNICIPAL CORPORATIONS board of public works of said city adopted PUBLIC IMPROVEMENTS LIABILITY FOR AS-a preliminary resolution for the improveSESSMENT ESTOPPEL. 488, 489 (5) To estop the owner of land assessed for pub: lic improvement to question the assessment, it must appear that he stood by without objection and permitted the work to be commenced and continued, and therefore, where he brought an injunction suit to restrain the improvement and the assessment, he was not estopped. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1151, 1152; Dec. Dig. 488, 489(5).] One having knowledge of a pending appeal. able cause is conclusively presumed to know that a judgment entered therein may be appealed from within a limited time. [Ed. Note.-For other cases, see Lis Pendens, Dec. Dig. 11(2).] resolution was subsequently modified so as It will be observed from an examination 10. NEW TRIAL 116(3)—LACHES STATU-and Warren's quick-drying bituminous flush TORY PERIOD. A party who moves for new trial within the statutory time is not guilty of laches. [Ed. Note.-For other cases, see New Trial, Dec. Dig. 116(3).} coat composition be used. The answer includes also, with appropriate averments in aid thereof, a written agreement entered into between the board of public works and Appeal from Superior Court, Marion Coun- Warren Bros. Company prior to the adop ty: V. T. Clifford, Special Judge. tion of the specifications. This agreement Suit by the Hoosier Construction Company also is copied into the opinion in Seibert v. |