Black v. Richards

• Decision Date: 27 November 1883
• Docket Number: 10,958
• Parties: Black et al. v. Richards et al
• Court: Indiana Supreme Court

95 Ind. 184

Black et al. v. Richards et al

No. 10,958

Supreme Court of Indiana

November 27, 1883

Reharing: April 26, 1884

Reported at: 95 Ind. 184 at 186.

From the Clinton Circuit Court.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

J Claybaugh and B. K. Higinbotham, for appellants.

S. H Doyle, P. W. Gard, R. P. Davidson and T. H. Palmer, for appellees.

OPINION

Niblack, J.

The complaint in this case charged that Isaiah Black, Priscilla Pedlow and Amanda Crone are the owners of three undivided fifth parts of a tract of land in Clinton county, particularly describing it, and that Lydia Richards and Elihu Black are together the owners in equal proportions of the remaining two undivided fifth parts of the same land; that the plaintiff Thomas Pedlow is the husband of Priscilla Pedlow, and that Robert W. Crone, the remaining plaintiff, is the husband of Amanda Crone; that William W. Richards, in his own right, and John J. Richards, as the administrator of the estates of Elizabeth Black and Ann J. Black, deceased, with the will annexed, claim some interest in the land adverse to the plaintiffs. Wherefore partition and all other proper relief were demanded.

Lydia Richards, William W. Richards and John J. Richards answered: First. In denial. Second. That the said Elizabeth Black and Ann J. Black were, during the last years of their joint lives, the owners in fee simple, and tenants in common, of the land described in the complaint; that on the 19th day of July, 1879, the said Elizabeth Black and Ann J. Black executed a will, by the terms of which the survivor was to have and to hold said land during her life, and after the death of both of them, such land should become the property of the defendant William W. Richards in fee simple; that the said Ann J. Black died in August, 1879, and the said Elizabeth Black died on the 6th day of September, 1882; that said will was duly admitted to probate on the 12th day of said last named month, a copy of which will was filed with the answer.

The plaintiffs demurred to this answer, but their demurrer was overruled, and, declining to plead further, final judgment was rendered against them upon demurrer.

The will does not, within the meaning of the code, constitute the foundation of the defence attempted to be set up by the answer. It is not an instrument purporting to have been executed by the plaintiffs, or any of them, or to be personally obligatory upon them, or any of them. Noble v. McGinnis, 55 Ind. 528; Parsons v. Milford, 67 Ind. 489. Construing everything most favorably to the defendants, the will affords the only evidence tending to establish title in William W. Richards to the land in dispute.

Written instruments, which are merely to be used as evidence, are not required to be filed with the pleadings in a cause, and do not become a part of any pleading by being filed with it. R. S. 1881, section 362; Cassaday v. American Ins. Co., 72 Ind. 95, and cases cited by it; Sedgwick v. Tucker, 90 Ind. 271.

As the filing of a copy with the answer in this case did not make the will a part of that pleading, it follows that the demurrer did not raise any question, either upon the validity or the construction of that instrument in the circuit court, and that this appeal brings no question to this court touching the manner of its execution or legal effect of the will. The will being thus, in legal effect, eliminated from the answer, there remains only an averment of title in William W. Richards as a defence to the action. This is as to him only an argumentative denial of the facts charged in the complaint, and is no defence for the remaining defendants, who join in the answer without asserting any interest in the land. It is an old and well recognized rule in pleading that a plea which is bad in part is bad in toto, and that hence, where two defendants join in a plea which is insufficient for one, it is bad as to both. 1 Chitty Plead. 567; Poulk v. Slocum, 3 Blackf. 421. This rule has been held to be applicable to answers under the code of 1852, and applies with equal force to that class of pleadings under the code of 1881. Brownfield v. Weicht, 9 Ind. 394; Ward v. Bennett, 20 Ind. 440. The demurrer to the answer ought to have been sustained.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

The alleged will, referred to in the foregoing opinion, is as follows:

"July 9th, 1879.

"In the name of the Benevolent Father of all, I, Elizabeth, and Ann Jane Black, do make and publish this our last will and testament. Item 1st. The west half of the southwest fr., section (19) nineteen, township (22), range (1W), contain (72) seventy-two and (40) hundredths acres. It is our desire and wish and request, that on the death of either of us, that the remaining survivor is to have and to hold the above described land during her lifetime, undivided and unsold, for her own use and benefit. After the death of Elizabeth and Ann Jane Black, the above described lands are to be given, by our devise and wish, to William W. Richards. The said William W. Richards is to pay to his brother John J. Richards the sum of $ 800, and to our beloved sister, Lydia Richards, two hundred dollars ($ 200), one bed and bedding, and one cow. To our beloved sister, Amanda Crone, twenty-five dollars ($ 25), and a bed and bedding, and to our brother, Isaiah Black, the sum of five dollars ($ 5). Our sister Priscilla Pedlow is to have five dollars ($ 5).

"We devise and bequeath to the United Presbyterian Church the sum of $ 100, to be paid by William W. Richards. The above named William W. Richards is to have and to hold all the personal property not otherwise disposed of, and the said William W. Richards is to pay all funeral expenses."

This instrument purports to have been signed by the said Elizabeth Black and Ann Jane Black, and published as their will, in the presence of two subscribing witnesses, in the usual form, and to have been duly proven and admitted to probate on the 12th day of September, 1882, as averred in the answer ruled upon in the original opinion.

Counsel for the appellants, as well as the appellees, have united in a request that we shall pass upon the question of the validity of the instrument so purporting to be the last will and testament of the persons who executed the same, upon the theory that it had been properly made a part of the answer in the cause, and with the view of preventing further litigation, and especially of saving the necessity of another appeal to this court. We have consented to comply with the request thus made.

It is objected: First. That there can not be a conjoint or mutual will; that such a will is unknown to the testamentary law of this country. Secondly. That the instrument before us is void because of uncertainty in the description of the real estate it assumes to dispose of in the manner and form therein prescribed.

It seems to have been once recognized as a rule in the testamentary disposition of property, that neither a joint nor a mutual will could be made effectual for such a purpose; but more recently that rule has been very much modified, and can no longer be held to be one of general application.

On that subject Williams on Executors, at page 11, says: "But there are several authorities which appear to...