Morris v. Morris

• Decision Date: 18 June 1889
• Citation: 21 N.E. 918,119 Ind. 341
• Parties: Morris v. Morris et al.
• Court: Indiana Supreme Court

119 Ind. 341

21 N.E. 918

Morris

v.Morris et al.

Supreme Court of Indiana.

June 18, 1889.

Appeal from circuit court, Washington county; F. L. Collins, Judge.

John A. Zaring and Jason B. Brown, for appellant. Voyles & Morris, Mitchell & Mitchell, and Hobbs & Paynter, for appellees.

Coffey, J.

This was a suit by the appellant against the appellees to contest the will of Thomas Morris, deceased. The complaint is in two paragraphs. The first paragraph charges that the said Thomas Morris, at the time of the execution of the will in controversy, was a person of unsound mind, and incapable of executing a will. The second paragraph is substantially as follows: That plaintiff is the surviving widow of Thomas Morris, deceased. That said Thomas departed this life on the ------ day of ------, 1886, in Washington county, Indiana, leaving both real and personal estate, and leaving a will, by the terms of which the defendant Micah Morris was appointed executor, which will is as follows: “ Item First. I desire my debts to be paid. Item Second. As to my farm in said county, to-wit, 84 acres off the east side of the north-east quarter of section 36, township 3 north, range 4 east, I make the following disposition of the same: I devise the said farm and land to my brother, Micah Morris, to be his in fee-simple, reserving to myself and wife, Hannah Morris, full control and possession of said farm during each of our lives; but, if my said wife shall not elect to accept the terms of this will at my death, I devise to her a life-estate in said land anyhow, and at her death two-thirds of the land in fee shall be, and the same is hereby, devised to my said brother. I appoint my brother, Micah Morris, as executor of this my last will and testament.” That said will has been duly probated, and the plaintiff herein has filed in the clerk's office of said county her intention to take the provision made by law, and her refusal to take the provision made for her by the terms of said will. That, by the provisions of said will, when she refused to take under the same there is a life-estate in said land for which there is no provision made, and which is not disposed of by said testator. That when she refused to take under said will said testator became intestate as to said life-estate. That said last will is void on its face. That the said Thomas Morris never had any children, and that he left surviving him neither father nor mother. That the plaintiff, as the surviving widow of the said Thomas Morris, is entitled to all his estate, both real and personal. Prayer that the will be declared void, and the plaintiff decreed to be the owner of all said propety. The court sustained a demurrer to the second paragraph of the complaint, and the appellant excepted. The cause was put at issue by a general denial. A trial of the cause resulted in verdict and judgment for the appellees.

The appellant assigns as error: (1) That the court erred in sustaining a demurrer to the second paragraph of the complaint. (2) That the court erred in overruling the motion for a new trial.

It is earnestly insisted by the appellant that when she refused to take the provisions made for her by the will of her late husband it became impossible to carry out the intentions of the testator, and that therefore the will became void, and that she, as the widow, became entitled to the whole estate. We cannot agree with appellant in this position. Our statute of descents provides that if a husband or wife die intestate, leaving no child, and no father or mother, the whole of his or her property, real and personal, shall go to the survivor. Section 2490, Rev. St. 1881. When appellant refused to accept the provisions made for her by the will of her husband, she took such interest in his property as was given her by statute. That interest was one-third of his land in fee, and if there was any portion of his estate undisposed of by will, as he left no child, nor father nor mother, she took it under the provisions of the above statute. Cool v. Cool, 54 Ind. 225;Rusing v. Rusing, 25 Ind. 63;Dale v. Bartley, 58 Ind. 101;Lindsay v. Lindsay, 47...