Heaston v. Kreig

• Decision Date: 27 April 1906
• Docket Number: No. 20,504.,20,504.
• Citation: 77 N.E. 805,167 Ind. 101
• Parties: HEASTON et al. v. KREIG.
• Court: Indiana Supreme Court

167 Ind. 101

77 N.E. 805

HEASTON et al.

v.KREIG.

No. 20,504.^*

Supreme Court of Indiana.

April 27, 1906.

Appeal from Circuit Court, Huntington County; Levi Mock, Special Judge.

Action by Emma L. Kreig against John Heaston, executor, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Cline, Eberhart & Cline and Kenner, Lucas & Kenner, for appellants. Lesh & Lesh and Branyan & Feightner, for appellee.

GILLETT, C. J.

Appellee instituted this action against John Heaston, as executor of the probated will of Esther McGlinn, deceased, and the persons named as devisees and legatees under said instrument, to contest the validity of the same and to probate in its stead an alleged subsequent will of said decedent. The document assailed bore date April 30, 1903, and the later writing, under which appellee claimed as a legattee, was signed September 1, 1903. The action resulted in a judgment revoking the probate of said former instrument and establishing as the last will and testament of said decedent the writing brought forward by appellee. As the complaint appears in the record, there are two exhibits attached, one of which was a copy of the writing last mentioned and the other a copy of the will of John McGlinn, the deceased husband of said Esther. The exhibit of the alleged will of which appellee was the proponent is in the words and figures following, viz.:

“Contract.”

“This agreement is entered into by and between Esther McGlinn, of Huntington county, Indiana, and Emma L. Kreig, of Huntington county and state of Indiana, party of the second part, and its provisions are as follows, to wit:

“(1) The said party of the second part, Emma L. Kreig, is to take care of the first party, Esther McGlinn, during the balance of her natural life, including boarding, lodging, washing, furnish her with all reasonable and necessary wearing apparel, medical attendance and nurse her in sickness as required, and furnish and do all such things as may be reasonably required for her comfort and support during her remaining years, said home to be furnished in Huntington, Indiana, the free use of the property on East Franklin street where said parties now reside being permitted for said purpose as well as a residence for the other members of the family of the second party.

“(2) In consideration of the things to be done and furnished by the said Emma L. Kreig, for and on behalf of the said Esther McGlinn, and also the love and affection which each of the said parties has for the other, the said Esther McGlinn is to convey by proper deed of conveyance to said Emma L. Kreig, the undivided one-half interest in lot No. 133 in the original plat of the city of Huntington, Indiana, in addition to which there shall be paid to said Emma L. Kreig, at the death of said Esther McGlinn, the whole of the residue of the estate, real, personal and mixed, of which she shall die seised after deducting the following, to wit: (a) The undivided one-half of said estate which is to go to the brothers, sisters, and descendents of said John McGlinn, deceased, by the provisions of item 1 of his will, which provisions are to be carried out. (b) There shall also be deducted from the residue of the estate the sum of two hundred ($200.00) dollars to be paid to John M. Kreig and a like sum ($200) to be paid to Esther Ellen Bailey. All the remainder, however, shall be paid by the legal representative or representatives of my estate to said Emma L. Kreig.

“(3) The provisions of this instrument being required for the comfortable and reasonable support of said Esther McGlinn, the same are to supersede any and all wills or codicils which have been or may hereafter be made by her.

“Witness our hands this 1st day of September, 1903.

“Esther McGlinn.

“Emma L. Kreig.

“This instrument was signed by the parties thereto in our presence and signed by us in their presence, this 1st day of September, 1903.

“U. S. Lesh.

“Eben Lesh.”

The will of said John McGlinn, according to the copy thereof which is made an exhibit to the complaint, gave to his wife all of his property for and during her natural life, and it gave her authority to dispose of the same in the following language: “I do hereby authorize her with advice of my executors hereafter named to sell and with said executors to execute all necessary titles, papers, deed, and contract for whatever portion of said property my said wife may deem necessary for her support and comfort and with the further power to dispose of the one-half of the residue or surplus if any shall remain at her death by will or executory devise, and I will and direct that the other half of said residue shall be equally divided amongst my brothers and sisters, if living, and if deceased then to their descendants.”

The first assignment of error is based on the overruling of a demurrer to the complaint, and the first objection which appellants' counsel make to said pleading is thus stated by them: “The exhibits to the complaint are not parts thereof, and hence Emma L. Kreig, the appellee, is not a party in interest, and cannot legally contest the will of Esther McGlinn.” It is alleged in the complaint, among other things, “that on the 1st day of September, 1903, said Esther McGlinn duly revoked said alleged will by an instrument in writing, signed by her and attested and subscribed by two competent witnesses as required by law, a copy of which is hereto attached and made a part hereof and referred to as ‘Exhibit A.”’ It is further alleged “that the plaintiff is a foster daughter of said decedent, and by the terms of her last will is named as a legatee, and as such is entitled to maintain this action.” The specific relief prayed for is “that the probate of said will be annulled, and that the one herein proposed be admitted to probate in lieu thereof.” Appellants admit in their brief that the copy of the will of John McGlinn, deceased, was attached to the complaint by order of the court, on their motion, so, although it is not necessary to meet the objection stated to examine said exhibit, we may say in passing, as applied to other objections urged against the complaint, that appellants, by their conduct, are estopped to deny that the copy of that will is a proper exhibit. As to the copy of the instrument of September 1, 1903, appellants' counsel cite as authority for the proposition that said copy is not a proper exhibit certain decisions of this court to the effect that in an action to contest a will a copy of the instrument in contest cannot properly be attached as an exhibit. These cases are not in point, for the copy in question is the one under which appellee claims; the fact that she made it an exhibit tends to show, as does also the general structure of the complaint, that her effort in part was to procure the probate of said instrument. She had a right, in the action to contest the earlier will, which she claimed had been revoked by the subsequent instrument, to propound said instrument for probate, if it amounted to a will. So in the strictest sense of the term, it was the foundation of her cause of action. It was not mere evidence of a right. It was her right of action. Her complaint in that respect would not have been good unless she had incorporated the copy in such pleading, or made it an exhibit. The rule of the Code that where a pleading is founded on a written instrument the original or a copy thereof must be filed, is imperative, and in this respect the rule of practice in this state is stricter than at common law. Price v. Grand Rapids, etc., R. Co., 13 Ind. 58. It was held in Watt v. Pittman, 125 Ind. 168, 25 N. E. 191, that there are cases in which it is proper to make an instrument an exhibit although it is not in the strict sense the foundation of the action, as in a complaint to construe a will, and so here, upon the same principle, it would seem that the making of the instrument of revocation an exhibit was authorized, in so far as the complaint attacked the former will, to enable the court to determine from the terms of the subsequent instrument, and all of them would have to be examined, whether there was a sufficient revocation of the will in contest.

Appellants' counsel further contend that the writing of September 1, 1903, is conditional, and that therefore appellee ought to have alleged performance upon her part. It is to be observed that the things which appellee was to do according to the terms of said instrument were all to be performed in the lifetime of the decedent, and as the instrument, if a will, continued revocable until her death, no estate passed to which her stipulations could attach, either as conditions precedent or conditions subsequent. That the instrument at least in part, was a will in law we shall attempt to show hereafter. If the document were a deed, under which a title would pass, the protection of the interests of the grantor might incline the court to construe the statement of the agreement to support as a condition, but presumptively a will speaks as of the date of the death of the testator. It is especially unlikely that in a will a testator, who continues throughout the master of his own discretion, would attempt to protect himself by a condition precedent. This takes the case out of the range of cases in which conditions have been implied for the want of an effectual remedy in the grantor. Richter v. Richter, 111 Ind. 456, 12 N. E. 698. Besides, the consideration for the execution of the instrument in question by the decedent is stated to be love and affection, as well as the things promised to be done by the other party, so it would seem, at least if it be assumed that the residuary clause is a will, in which it is presumed that the testator's bounty is an element, that the case comes within the rule that in the absence of express words a condition is not to be implied from the mention of a consideration if it does not go to the whole consideration. 2 Parsons on...