O'Brien v. Knotts

• Decision Date: 11 October 1905
• Docket Number: 20,608
• Parties: O'Brien v. Knotts et al
• Court: Indiana Supreme Court

75 N.E. 594

165 Ind. 308

O'Brien v. Knotts et al

No. 20,608

Supreme Court of Indiana

October 11, 1905

From Tipton Circuit Court; James F. Elliott, Judge.

Suit by Flora O'Brien against Eliza C. Knotts and another. From a decree for defendants, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.

Affirmed.

Greenlee & Call and Coleman & Carter, for appellant.

Gifford & Gifford and Beauchamp, Mount & Proctor, for appellees.

OPINION

Hadley, J.

This is a suit for partition, but the fundamental question involved is one of title in the appellant. On a general denial of the complaint, there was a trial by the court, and finding and judgment for appellees.

The special findings disclose the following facts: Jonathan Jennings departed this life testate in 1872, leaving Margaret Jennings, his widow, and three children, namely, John T Samuel, and the defendant (appellee) Eliza C. Knotts, nee Jennings, as his only heirs at law. The testator at his death was the owner of eighty acres of land in Tipton county, and a small amount of personal property, all of which he devised and bequeathed to his wife for life, with remainder in equal shares to his three children. The son Samuel died in 1883, leaving neither wife nor child. The son John T. in 1880 intermarried with the plaintiff (appellant), and in 1883 died, leaving no heirs but his wife and mother, Margaret Jennings. Appellant subsequently intermarried with O'Brien. Margaret Jennings died in 1902, leaving as her only heirs her daughter Eliza C. Knotts, and Porter Nelson, with whom she had intermarried in 1888. At the death of the testator he was indebted in about the sum of $ 2,000. The will was duly probated, but no letters were ever issued thereon and no administration had thereunder. The widow, Margaret, was named as executrix, but she never qualified. Said widow elected to take her rights in the estate under the law, and not under the will. When the widow and her said children discovered that it would require all of said estate beyond the legal portion of the widow to pay the debts against the same, the children, said John T., Samuel, and Eliza C. Knotts, entered into a parol contract with their mother, said Margaret, whereby the latter assumed and agreed to pay all of the indebtedness of the estate with her own separate means, and in consideration therefor each of said children agreed to execute to said widow a deed, conveying to her all the right, title and interest possessed in said estate. Under and in pursuance of the contract all of said children put their said mother in full, complete and absolute possession of the land described in the complaint, and did then and forever after renounce any right or claim therein. The widow on her part paid, of her separate property, all the debts against said estate, amounting to about $ 2,000, made lasting and valuable improvements at a cost and value of $ 1,200, and held the absolute and undisturbed possession of the land in controversy until her death.

Upon the foregoing facts the court concluded that the law was with the defendants, and, having overruled appellant's motion for a new trial, rendered judgment against her for costs, and she appeals.

Besides the overruling of her motion for a new trial, appellant assigns the court's conclusion of law as erroneous, but in her brief does not state the latter as a ground relied upon for reversal, nor refer to it in argument as being a misstatement of the law upon the facts set forth in the special findings. Under the waiver or implied concession, therefore, we are not called upon to consider the accuracy of the conclusion of law.

The principal question in the case is the sufficiency of the evidence to sustain the special findings: It is earnestly and ably contended by counsel that there was an absolute failure of legitimate evidence to sustain the findings (a) that the widow, Margaret Jennings, elected to take her interest in the estate of her deceased husband under the law; (b) the making of the parol contract of sale; and (c) that possession by the widow was taken under the contract.

(a) Under the law as it stood in 1872, 1 R. S. 1852, p. 248, §§ 27, 41, §§ 2491, 2505 R. S. 1881, when the will was probated, a widow who was called upon to elect between a testamentary provision and her statutory rights in her deceased husband's estate, as in this case, was required to signify her choice by some open avowal or affirmative act under the will only when her aim was to accept the provisions of the will. The rule was grounded upon the theory that as the statute defined and fixed the rights of the wife in her husband's estate, she could not be divested of what the law gave her for another and different interest without her consent. So it was held, under the statute as then constructed and remained till 1885 (Acts 1885, p. 239, § 2666 Burns 1901), that in the absence of some writing or declaration or affirmative act pursuant to the provisions of the will, indicating an acceptance of the will, the widow was presumed to have taken her rights under the law. In other words, in all cases of controversy there must be produced some positive, affirmative and clear evidence that the widow had consented to surrender her legal rights in the estate, for the testamentary provision, or she would be adjudged as having elected to abide her rights under the statute. Wetherill v. Harris (1879), 67 Ind. 452, 473; Leach v. Prebster (1872), 39 Ind. 492, 497; Piercy v. Piercy (1862), 19 Ind. 467; Wilson v. Moore (1882), 86 Ind. 244; Wilson v. Wilson (1896), 145 Ind. 659, 666, 44 N.E. 665.

Under this rule of the law we are unable to say that the evidence was insufficient to justify the court in finding that the widow took under the law. There is no evidence that she ever uttered a word or did an act that indicated that she had accepted the provisions of the will. It is true that she was nominated as executrix, and that the will was probated, but there is no evidence that she procured or knew of the probate, or that she had any knowledge of her nomination, or even of the contents of the will. The evidence all shows that there was no regular settlement of the estate, either under letters testamentary, or of administration, and that no such letters were ever issued. Besides, it appears, without contradiction, that after the death of her husband she and her children continued to reside on the farm. She assumed and continued to exercise absolute dominion over the property, real and personal, bought and sold personal property, made repairs, ditched, fenced and cleared up ground, and made valuable and lasting improvements, disposed of growing timber, and rendered no account to her children or the court. But appellant argues that her possession and control was consistent and consonant with the provisions of the will, which gave her a life estate in all the property. Except the sale of the timber from the farm, this was perhaps true; but it was consistent in a broader sense with her claim of absolute ownership by purchase from her children. As we have seen, the widow could not be divested of her statutory rights without clear and satisfactory proof that, with knowledge of the provisions of the will, she voluntarily accepted the testamentary provision in lieu of the benefits provided by statute. Clearly, under the evidence and the rule of law prevailing at the time, we can not disturb the court's finding that the widow took under the law.

(b) The second finding objected to, to wit, the existence of a parol contract of sale between the mother and children, is not so clearly established. An apparently credible witness testified to hearing a conversation between John T. Jennings, former husband of appellant, and James Knotts, the husband of his sister Eliza, said John and Eliza being children of said widow, in September, 1878, when Knotts and his wife were about leaving for Kansas to reside, in which conversation Jennings said to his brother...