Hibberd v. Trask
| Decision Date | 01 May 1903 |
| Docket Number | 19,830 |
| Parties | Hibberd v. Trask et al |
| Court | Indiana Supreme Court |
From Wayne Circuit Court; H. C. Fox, Judge.
Suit by Milton L. Hibberd against Irene W. Trask and others. From a judgment for defendants, plaintiff appeals.
Affirmed.
S. C Whitesell, for appellant.
T. J Study, for appellees.
The complaint in this case alleged that the appellant, who was the plaintiff below, together with the defendant named therein, were the owners in fee simple of certain lands situated in Wayne county, Indiana; that each of them was the owner of the undivided one-seventh of said lands, and that they held said lands as tenants in common. It also averred that the appellee Irene W. Trask, one of the defendants claimed to be the owner of the whole of said lands. Prayer that the title of said lands be quieted as against the said Irene W. Trask, that partition of the same be made among the said owners, and that their interests be allotted to them in severalty. All the defendants except Trask made default. The latter filed an answer in two paragraphs, the first being a general denial.
The special answer stated that one Anna L. Bickle died, testate, January 21, 1901, and that at the time of her death she owned in fee simple, in her own right, the whole of the real estate described in the complaint; that on April 4, 1865, being then over twenty-one years of age, and competent to execute a valid will, the said Anna L. Bickle made her last will in writing, which was duly attested, and that by said will the said testatrix devised all of her property, real and personal, to the said Irene W. Trask; that said will remained in force and unrevoked until the death of the said Anna L. Bickle, and that after her death, on January 26, 1901, the said will was duly admitted to probate in the circuit court of said Wayne county; that among the property so devised to her, the said Irene W. Trask, was the whole of the real estate described in the complaint, and that she was the owner in fee simple in severalty of the said lands; that the appellant had no title to or interest in the same, or in any part thereof, and was not entitled to have partition of said real estate.
To this answer the appellant filed a reply, stating that at the time of the execution of the supposed will of the said Anna L. Bickle, mentioned in the answer of the appellee Trask, the said Anna L. was the lawful wife of one William A. Bickle; that at the time of the execution of said will, the said Anna L. and William A. Bickle were estranged from each other and lived apart; that on March 6, 1866, in an action then pending in the Wayne Circuit Court, in the county of Wayne, and State of Indiana, wherein the said William A. Bickle was plaintiff and the said Anna L. Bickle was defendant, such proceedings were had that upon the trial thereof the said parties were by the judgment and decree of said court divorced from each other; that the alimony to be received by the said Anna L. Bickle, and certain other conditions of said divorce, were fixed by an agreement between the said parties, which was made a part of said decree, and is fully set out in said reply; that afterwards the said William A. Bickle and Anna A. Bickle were remarried to each other, and that the said Anna L. Bickle concealed from the said William A. Bickle the fact of the existence of the said will; that the said William A. had no father nor mother, but that he had six sisters living, one of whom was blind, an invalid, and partially dependent upon him for her support; that it was the desire of the said William A. that each of his sisters should have out of his estate the sum of $ 2,000; that some time in June, 1894, he made known this desire to the said Anna L. Bickle, and requested that, if he died before she did, she would make a will, and by it give to each of his sisters the sum of $ 2,000; that the said Anna L. promised him that if he would not make a will, and that if he died before she did, she would comply with the said request; that, relying upon the said promise, the said William A. Bickle died without making any other provision for his said sisters. On February 11, 1898, the said William A. Bickle died intestate, leaving the said Anna L. his widow and sole heir at law. It is also shown by the said reply that he left an estate valued at about $ 100,000.
To the second paragraph of the appellant's reply a demurrer was sustained, and judgment was rendered upon this ruling. This decision is assigned for error.
Counsel for appellant insists that the will made by Mrs. Anna L. Bickle during her marriage to William A. Bickle, and before her divorce from him, was revoked by her subsequent marriage to him. In support of this proposition it is argued that upon her divorce Mrs. Bickle became an unmarried woman, and that under § 2732 Burns 1901 her will previously made must be deemed revoked by such marriage.
In this State, by virtue of the statute, all persons except infants and persons of unsound mind are made competent to devise by last will and testament any interest descendible to their heirs which they may have in any lands, tenements hereditaments, or personal property. § 2726 Burns 1901, 2 R. S. 1852, § 1, p. 308. By § 2727 Burns 1901, § 1, Acts 1859, p. 245, it was declared that the section just referred to was intended to empower, and did empower, married women as well as other persons, except infants and persons of unsound mind, to devise and bequeath their property, real and personal, by will. At the time of the execution of the will of Mrs. Bickle she was a married woman, and by the express terms of the statutes she was competent to devise her property in that way. The provision of the statute relied upon by counsel for appellant is as follows: "(5) After the making of a will by an unmarried woman, if she shall marry, such will shall be deemed revoked by such marriage." The class of persons whose wills are deemed to be revoked by subsequent marriage under this section are women who have made wills while unmarried. This provision, being...
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