Dudley v. Pigg

• Decision Date: 09 December 1897
• Docket Number: 18,360
• Citation: 48 N.E. 642,149 Ind. 363
• Parties: Dudley et al. v. Pigg
• Court: Indiana Supreme Court

48 N.E. 642

149 Ind. 363

Dudley et al. v. Pigg

No. 18,360

Supreme Court of Indiana

December 9, 1897

Rehearing Denied Jan. 28, 1898.

From the Sullivan Circuit Court.

Affirmed.

Pigg & Brown, for appellants.

G. W Buff and W. B. Nesbit, for appellee.

OPINION

Monks, J.--

Appellee widow of Joseph N. Pigg, brought this action against appellants to revoke and set aside an election executed by her to take under the will of said deceased husband. A demurrer to the complaint was sustained, and, an additional paragraph of complaint being filed, a demurrer to the same was overruled. An answer in three paragraphs was filed, to the second and third of which a demurrer for want of facts was sustained. Final judgment was rendered in favor of the appellee.

The errors assigned, and not waived, call in question the action of the court in overruling the demurrer to the additional paragraph of the complaint, and in sustaining the appellee's motion to strike out a part of the second paragraph of answer, and in sustaining appellee's demurrer to the second and third paragraphs of answer.

The first objection urged to the additional paragraph of complaint is that no copy of the election to take under the will is filed with said paragraph. As this action is not founded upon the election, but is to revoke, cancel, and set the same aside, it was not necessary to file the same, or a copy thereof, as an exhibit, with said paragraph of complaint; and, if the same had been so filed, it would not be a part thereof, nor could it be considered in determining the sufficiency of such paragraph. Gum-Elastic Roofing Co. v. Mexico Publishing Co., 140 Ind. 158, 160-161, 30 L. R. A. 700, 39 N.E. 443, and cases cited; Johnson v. Moore, 112 Ind. 91, 13 N.E. 106; Barkley v. Tapp, 87 Ind. 25, 27; Stout v. Stout, 77 Ind. 537, 540; Heitman v. Schnek, 40 Ind. 93, 97, and cases cited.

It is alleged in the additional paragraph of complaint: That the will of said testator, Joseph N. Pigg, was admitted to probate December, 1896. That after the death of said testator, when the contents of said will were made known to appellee, she declared to the heirs and legatees that she would not accept the provisions of said will, but would make her election to take under the laws of the State of Indiana. "That thereupon the legatees and heirs, when they learned of the plaintiff's desire so to elect to take under the law, began a course of conduct to persuade and induce the plaintiff to accept the provisions of the will. That at the time the plaintiff was greatly grieved and distressed over the recent loss of her husband, and was not in a suitable condition, physically or mentally, to transact business of the character and nature of the matter in hand, a fact which the said defendants well knew. Said defendants well knowing that plaintiff had great respect for her late husband, deceased, and had always endeavored to comply with his wishes and desires, they then and there told the plaintiff that she ought, in good conscience, to respect the wishes of her said husband, as expressed in said will, as the same affected the disposition of his estate; that to do otherwise would be to show great disrespect and disregard for her late husband's wishes. And, as a further inducement to obtain the execution by this plaintiff of an election to take under the will, said defendants represented to the plaintiff that the provisions made for her were ample, and all that she would likely need, and that they would not disturb her in the possession of the household and kitchen furniture, and she could retain and keep two dozen chickens, household and kitchen furniture, chairs, carpets, dishes, stoves, safes, cupboard, and everything she might desire to keep in the house, together with beds and bedding, hay and corn for her horse and cow, and such things as would make her comfortable and enable her to keep house without incurring expense for such things as she would need. That this plaintiff, being then aged and greatly grieved and distressed in mind, was more easily influenced than she would have been under other circumstances, facts the defendants well knew, and, not being in a condition, mentally, to comprehend and understand the exceeding meager provisions made for her in said will, was induced by said defendants, by means aforesaid to execute an election to take the provisions made for her in said will, a copy of which election is filed herewith and made a part of this complaint, which said election was so procured to be executed on the 28th day of December, 1896, in ten days after the death of her said husband. This plaintiff now avers that said defendants, at the time they so agreed to leave the plaintiff undisturbed in the ownership, use, and enjoyment of the property and household furniture aforesaid, had no intention of so doing, in case they could induce the plaintiff to elect to take under the will, but, upon the contrary, they expected to take all such property as a part of the estate of said Pigg, deceased, and wholly deprive the plaintiff of the use and enjoyment thereof, which facts were wholly unknown to the plaintiff, and which secret intention was concealed from her and was so done for the fraudulent purpose of procuring the plaintiff so to execute the election to take under the said will, a thing she would not have done in the absence of such promises, statements, and persuasions so made by the defendants. And she now says that when she executed said election she was taken to the town of Sullivan with some of the defendants, and in the stores was importuned to make such election by some of the defendants, and was taken to the office of the attorney for the executor, and did then, on said day aforesaid, execute said election. And she now says that immediately thereafter the said defendants, including the executor, proceeded to inventory and sell everything in and about the house, including dishes, stoves, carpets, safes, and literally stripping the house of its contents, leaving the plaintiff only one bed and feather tick and two pillows and one old chair." This action was commenced February 15, 1897.

Under section 2666, Burns' R. S. 1894 (Acts 1885, p. 239), the widow of a person dying testate, takes under the will, unless within one year after the probate of such will she makes her election to take under the law. This election must be in writing, signed by the widow, and acknowledged before some officer authorized to take the acknowledgment of deeds, and be filed and recorded in the office of the clerk of the circuit in which such will is probated, and recorded by such clerk in the record of wills. Unless she elects to take under the law, as required by said section, her rights are governed by the will. Archibald v. Long, 144 Ind. 451, 454, 43 N.E. 439, and cases cited; Burden v. Burden, 141 Ind. 471, 476, 40 N.E. 1067; Garn v. Garn, 135 Ind. 687, 35 N.E. 394; Draper v. Morris, 137 Ind. 169, 36 N.E. 714; Fosher v. Guilliams, 120 Ind. 172, 22 N.E. 118; Henry's Probate Law and Prac., section 915.

The widow's right to elect within the year to take under the law cannot be barred except by such conduct on her part as will constitute an estoppel. Burden v. Burden, supra, p. 476; Garn v. Garn, supra, p. 690. The mere execution of an election to take under the provisions of the will and filing the same with the clerk, as required by statute in making an election to take under the law, will not estop such widow from afterwards making an election as required by the statute to take under the law. Innocent parties, however, relying on such election by the widow to take under the will, might be induced so to deal with the property of the testator, as that such widow, as against them, would not be permitted thereafter, although within the year, to make an election to take under the law. For this reason the widow, after she has filed an election to take under the will, may, within the year, commence and maintain an action to cancel the same, and file her election to take under the law. Burden v. Burden, supra; Garn v. Garn, supra; Henry's Probate Law and Prac., sections 916, 917. There is nothing in the additional paragraph of complaint showing that appellee, at the time she commenced the action, had done anything to estop her from electing to take her share in the estate of her deceased husband under the law. On the contrary, it appears that she was aged and feeble, and that on account of the importunities and promises of the heirs and legatees she was induced to make and file, within ten days after the death of her husband, an election to take under the will, when the statute in no way authorized or required such an election. There was no error in overruling the demurrer to the additional paragraph of the complaint.

Appellee's motion to strike out a part of the second paragraph of answer was sustained on June 5, and thirty days were given in which to file a bill of exceptions. A bill of exceptions was presented to and signed by the judge on July 19, and on the same day was filed in the office of the clerk of the court below. As the bill of exceptions was presented to the judge more than thirty days after June 5, the same forms no part of the record. Elliott's App. Proced., sections 802, 805. The said bill of exceptions not being a part of the record the alleged error of the court in sustaining the motion to strike out a part of said second paragraph of answer is not properly saved, and no question is presented. The ruling of a court in sustaining a motion to strike out a...