Langley v. Mayhew

• Decision Date: 14 April 1886
• Citation: 6 N.E. 317,107 Ind. 198
• Parties: Langley v. Mayhew and others.
• Court: Indiana Supreme Court

107 Ind. 198

6 N.E. 317

Langley

v.Mayhew and others.^a1

Supreme Court of Indiana.

April 14, 1886.

Appeal from Allen circuit court.

Robertson & Harper, for appellant.

T. W. Wilson, for appellee.

Niblack, C. J.

Petition by Hannah Langley, widow of John Langley, deceased, against Sarah Mayhew, executrix of the last will and testament of the said John Langley, and the other devisees and legatees under the will, to have the final settlement of the estate set aside and reopened, under the provisions of section 2403 of the Revised Statutes of 1881. The petition charged that the petitioner was entitled to $500 out of the estate of the decedent, as his widow, in addition to certain bequests to her by the will, which fact the executrix had fraudulently concealed from her, and that the estate was finally settled without her knowledge, and without paying her said sum of $500. Issues were formed by general denials, and upon certain matters specially pleaded in defense. At the request of the parties the circuit court made a special finding of the facts, which may be summarized as follows:

That the decedent duly executed his last will on the twenty-ninth day of April, 1881, as charged in the petition, and thereafterwards, on the nineteenth day of July, 1881, died, leaving said will, which was duly admitted to probate on the twenty-first day of the same month, in full force. That the first item of such will was in these words: “After the payment of all my just debts, (of which I have very few,) expenses of last sickness, and funeral expenses, out of my personal property, I will, bequeath, and devise to my wife, Hannah Langley, the sum of fifteen hundred dollars; and if I shall not leave sufficient personal property to pay the same, it shall be a lien upon such real estate as is not specifically devised herein, and secondly on such as is so devised: provided, however, that whatever sum or amount shall be paid by me to the said Hannah Langley during my life-time shall be deducted from said sum of $1,500, and the sum of $487.61, notes of Robert Brooks, and secured by his mortgage, if accepted by her, is to be deducted therefrom. In addition to said sum of $1,500, I will and bequeath to said Hannah Langley all my household furniture, and the use, for and during her natural life, of the house situate on the rear part of lot numbered twenty-four, (24,) Chute & Prince's addition to the city of Fort Wayne, Allen county, Indiana, and sufficient ground to make good such use of said house; the above and foregoing being in lieu of any and all interest in my estate, both real and personal, which she might have as my widow.” That devises were made to Sarah Mayhew, the executrix, and the other children of the decedent by said will. That the petitioner and respondents are the legatees and devisees named in the testator's will. That the said Sarah Mayhew was, on the said twenty-first day of July, 1881, appointed executrix of the will, and entered upon the administration of the testator's estate. That said executrix, on the twelfth day of April, 1883, returned an inventory of the testator's personal estate, which was valued at and fairly worth the sum of $1,762.46. That the real estate described in and disposed by the will was all that the testator owned, or had any interest in, at the time of his death, and was of the aggregate value of $5,500. That on the said twenty-first day of July, 1881, the petitioner accepted from the executrix the Brooks notes named in the will, and delivered to her the following receipt:

“$487.61.

Received of John Langley four hundred and eighty-seven 61-100 dollars by notes of Robert Brooks secured by mortgage, the same to apply upon, and be credited and charged against, a bequest of fifteen hundred dollars this day made to me by John Langley in his will, and which bequests I agree to accept in lieu of all rights in his estate as his widow.

Fort Wayne, April 29, 1881. Hannah Langley.”

That at the time of the execution of the will the petitioner was present, and that it was arranged between her and the testator that she should execute the foregoing receipt, and that the will and the receipt should be placed together in an envelope, and left with the attorney, who drew them both, until after the testator's death. That after the testator died the executrix delivered the notes to the petitioner, and, with the latter's knowledge and consent, retained the receipt as a voucher to be used in the settlement of the estate. That, at the same time, the executrix paid to the petitioner the sum of $512.38 in cash, to be applied upon the bequest to the latter by the will, and which was received and receipted for by the petitioner. That the petitioner was then in the possession of the household and kitchen furniture bequeathed to her, and so continued until the twenty-first day of April, 1883, when she executed a receipt therefor to the executrix as a legatee under the will. That in August and September, 1883, the executrix paid to the petitioner sums of money amounting in the aggregate to $500 more, in response to which payment the latter receipted to the former in full of all bequests under the will. That after the death of the testator the petitioner took possession of the real estate devised to her, and has ever since occupied the same under the will. That on the seventh day of September, 1883, the executrix filed in the Allen circuit court her account for the final settlement of the estate, upon which the clerk at the time indorsed, with his name attached, the words: “Hearing set for October 6, 1883.” That the executrix thereupon gave notice to all persons interested in the estate to appear in said circuit court on the last-named day, and to show cause why such account for final settlement should not be approved; also requiring the heirs, legatees, and devisees to appear in court on the same day, and make proof of their respective claims to an interest in the estate. That such notice was duly published for two weeks successively before said sixth day of October, 1883, in the Fort Wayne Weekly Sentinel, a weekly newspaper of general circulation, printed and published in the county of Allen, and posted up for a like length of time at the door of the court-house in said county. That on the seventh day of October, 1883, the court approved such account for final settlement, and the executrix was, by order of court, finally discharged. That the petitioner was not personally summoned to appear in court at said final settlement of the estate, nor was she present, either in person or by attorney, at such final settlement. That this proceeding was commenced on the eleventh day of December, 1883, and was placed upon the common-law docket of the court below, and all the entries and orders therein have been made upon the order-book containing the proceedings in ordinary civil actions. That the sum of $500 herein demanded has never been paid to the petitioner.

Upon the facts as thus found the circuit court arrived at the following conclusions of law:

“ First, that the petitioner was not entitled to recover from the decedent's estate the sum of $500, or any other sum, in addition to what she had received under the will; second, that no cause had been shown for setting aside and reopening the final settlement of the estate.”

Exceptions were reserved to the conclusions of law at which the court thus arrived, and in support of the exceptions so reserved it is argued that the necessary inference from cases previously decided by this court is that a surviving wife cannot be deprived of the $500 out of her deceased husband's estate to which she is entitled under section 2269, Rev. St. 1881, as an addition to any provision which her husband may make for her by his will; and the cases of Loring v. Craft, 16 Ind. 110;Dunham v. Tappam, 31 Ind. 173;Bratney v. Curry, 33 Ind. 399;Lieb v. Wilson, 51 Ind. 550;Schneider v. Pressner, 54 Ind. 524;Nelson v. Wilson, 61 Ind. 255;Whiteman v. Swem, 71 Ind. 530; and Smith v. Smith, 76 Ind. 236,-are cited as justifying that inference.

Some of the cases cited, and possibly others, have gone to an extreme limit in holding that widows were respectively...