Herbert v. National City Bank

• Decision Date: 20 February 1929
• Docket Number: 13,544
• Citation: 165 N.E. 80,88 Ind.App. 626
• Parties: HERBERT v. NATIONAL CITY BANK, EXECUTOR, ET AL
• Court: Indiana Appellate Court

165 N.E. 80

88 Ind.App. 626

HERBERT v. NATIONAL CITY BANK, EXECUTOR, ET AL

No. 13,544

Court of Appeals of Indiana

February 20, 1929

From Vanderburgh Probate Court; Elmer Q. Lockyear, Judge.

Action by Hester A. Herbert against the National City Bank of Evansville as executor of and trustee under the will of Sidney Z. Herbert, deceased, and others, to contest the decedent's will. From a judgment for defendants, the plaintiff appeals.

Reversed.

Paul H Schmidt, for appellant.

John R Brill and John W. Brady, for appellees.

REMY J. Lockyear, J., not participating.

OPINION

REMY, J.

Sidney Z. Herbert died testate October, 1925, leaving as his only heirs or next of kin, his widow, Hester A. Herbert, appellant herein, and their minor daughter, Katharine Alice Herbert. By the terms of the will, the undivided one-third of his property, real and personal, the testator gave to his widow, "in lieu of her statutory rights," remainder to a trustee in trust for his daughter, so to be held until the daughter would arrive at the age of twenty-five years, with the provision that if the daughter should die before she arrived at the age of twenty-five, the property so willed should go to those of testator's "blood relatives then living." The National City Bank of Evansville was named in the will as executor and trustee. On October 6, 1925, the will was probated, and January 7, 1926, the widow, pursuant to § 3 of the act of 1907 (Acts 1907 p. 73, § 3358 Burns 1926), renounced the provision made for her in the will, and elected to take the interest in the estate given to her under the laws of descent. Subsequently, the widow commenced this action to contest the will. Complaint charges unsoundness of mind and undue influence, and is in the usual form, except that the facts as to the provisions of the will and appellant's election to renounce the provision in her behalf and to accept under the law are fully set forth.

A demurrer to the complaint for want of sufficient facts was sustained, and appellant refusing to plead further, judgment was rendered in favor of appellees. This appeal followed.

But one question is presented: Can appellant, who, as widow, had made her election to take under the law, maintain an action to contest the will?

The parties agree, for the purposes of this case, that the value of the estate is in excess of $ 10,000, and that, under the laws of descent in this state, if the husband had died intestate, the widow would have received the undivided one-half of the estate. It is also agreed that if the will stands, the widow, having elected to renounce the will, would, under the facts averred in the complaint, receive one-third of the estate and $ 500, and no more.

It is provided by statute, § 3358, supra, that a widow, desiring to renounce the provision made for her in her husband's will, must file her election so to do within one year from the time the will is probated; and it has many times been decided by the courts that a failure to make an affirmative election within the year will be deemed an election to accept the provisions made by the will. Whitesell v. Strickler (1906), 167 Ind. 602, 618, 78 N.E. 845.

It is first contended by appellees that the widow having elected to renounce the provisions made for her in the will, and to take under the statutes of descent, she now has no interest in...