Haas v. Haas, 17979

• Decision Date: 11 April 1951
• Docket Number: No. 17979,17979
• Citation: 121 Ind.App. 335,98 N.E.2d 232
• Parties: HAAS et al. v. HAAS.
• Court: Indiana Appellate Court

Page 232

98 N.E.2d 232

121 Ind.App. 335

HAAS et al. v. HAAS.

No. 17979.

Appellate Court of Indiana, in Banc.

April 11, 1951.

William R. Johnson, Terre Haute, for Vinton Haas & Jeffries co., exrs.

Harvey Fisher, Brazil, Craig & Craig, Brazil, for legatees.

Kenneth C. Miller, Eugene Weaver, Brazil, R. Stanley Lawton, Indianapolis, Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellee.

CRUMPACKER, Judge.

We are urged to rehear this appeal because (1) we erred in holding that a widow is not estopped to contest the validity of her deceased husband's will by the single fact that she did not first elect to take under the law as she was privileged to do under Burns' Stat. § 6-2332; and (2) we failed to decide the questions raised by the court's refusal to give the appellants' tendered instructions 7 and 21.

The appellants' brief in support of their petition adds considerable force to the argument originally made in reference to the first proposition above stated. Nevertheless we remain firm in our belief that the election statute is not a part of, nor should it be construed as limiting in any manner the scope of the statutes concerning suits to contest wills. If a man dies and leaves a valid will with which his widow is dissatisfied, she must elect to take under the law within six months of its probate or she is conclusively presumed to have accepted the provisions made for her by the will. If a man dies and leaves a will which is subsequently adjudicated to be invalid, he dies intestate and his widow never had an effective choice between the law and a will. The failure to do an impotent and useless thing under the election statutes should not prejudice her rights under the statutes pertaining to the contest of wills. So it seems to us that the most that can be said of a widow's failure to elect to take under the law rather than under the terms of a will she considers invalid is that she has lost her right of election if the will is subsequently adjudicated to be good and more than six months has elapsed since the date it was probated.

The appellants insist, however, that when a will is probated it is presumed to be valid and such presumption puts a widow to the necessity of renouncing its provisions or suffer an estoppel of her rights to contest its validity. Just what character of estoppel such a situation presents it is difficult for us to understand. The appellants suggest that it is in the nature of the common law estoppel in pais which arose 'only in case of those solemn and peculiar acts to which the law gave the power of creating a right or passing estate, and to which the law attached as much efficacy and importance as to matters appearing either by deed or of record.' 19 Am.Jur., Estoppel, § 38, p. 633. In Indiana, however, the doctrine of estoppel in pais has been given a much wider scope and our courts have used the term interchangeably with 'equitable estoppel.' As was said in Fletcher v. Holmes, 1865, 25 Ind. 458, 'estoppels in pais, unlike technical estoppels by deed or matter of record, never exist without reference to the moral qualities of the conduct alleged. The door is shut against asserting a right where that would result in doing a wrong to some other person, or where in good conscience and honest dealing a party ought not to be permitted to gainsay his previous...