Roberts v. Abbott
| Decision Date | 29 January 1891 |
| Docket Number | 14,723 |
| Citation | 26 N.E. 565,127 Ind. 83 |
| Parties | Roberts, by Next Friend, v. Abbott et al |
| Court | Indiana Supreme Court |
From the Montgomery Circuit Court.
Judgment reversed, with directions to overrule the demurrer of John Lough, Rufus P. Lough, William Yelton and Nancy F White to the complaint, and to sustain the demurrer of the appellant to the first paragraph of the answer of Nancy Abbott.
W. B Herod and W. W. Thornton, for appellant.
J. F Harney, J. Wright and J. M. Seller, for appellees.
This was an action by the appellant against the appellees to contest the will of John Abbott, deceased. The complaint in the cause consists of two paragraphs. Each paragraph alleges that there was probated in the clerk's office of the Montgomery Circuit Court, on the 14th day of December, 1886, what purports to be the last will and testament of John Abbott, deceased; that the clerk of said court granted to the appellee, Nancy Abbott, who is the widow of John Abbott, letters of administration upon said estate, with said will annexed; that she had fully administered said estate and had filed her final settlement which had been approved; that by the terms of said pretended will the said Nancy was entitled to all the property of the deceased, both real and personal; that long prior to the date of said pretended will the said John Abbott duly executed another will, by the terms of which he bequeathed to the appellant all of his property, both real and personal, subject to a life-estate of the appellee, Nancy Abbott; that said last named will has been lost or destroyed, so that a copy thereof can not be filed with the complaint.
It is alleged that at the time the pretended will admitted to probate was signed by John Abbott, he was a person of unsound mind, and that the same was procured to be executed by the fraud and undue influence of the appellee, Nancy Abbott. It appears by the complaint that John Abbott died the owner of both real and personal property.
It is further alleged that the appellees, John Lough, Rufus Lough, William Yelton and Nancy F. White have purchased from the said Nancy Abbott certain described portions of the real estate of which John Abbott died the owner, and it is alleged in the second paragraph of the complaint that they each had notice of the will which the appellant seeks to establish and probate at the time of their respective purchases. The prayer is that the pretended will admitted to probate be set aside and declared void, and that the lost will be established and admitted to probate.
To this complaint Nancy Abbott filed an answer in two paragraphs. The first paragraph of the answers avers, substantially, that after the appellant learned of the execution of the will which she seeks to contest in this suit, she began her action in the Montgomery Circuit Court against John Abbott, the testator, to recover the value of certain services rendered by her to the testator, and the value of certain personal property belonging to her and theretofore converted to his own use by said John Abbott; that pending said suit John Abbott died, and that the appellee, Nancy Abbott, was duly appointed and qualified as administratrix of his estate, with said will annexed; that said will was duly probated on the 14th day of December, 1886; that after said will was probated, and after the appellee had qualified as such administratrix, she was, on motion of the appellant, substituted as defendant in said action, with full knowledge on the part of the appellant of all the facts alleged in the complaint, and with full knowledge of all said facts, she prosecuted her said action to final judgment, recovering therein the sum of five hundred dollars and her costs of suit; all of which the appellee paid her out of the funds belonging to said estate, which she yet retains.
The second paragraph of the answer sets up, by way of estoppel, the final order of the court discharging the appellee, Nancy Abbott, administratrix.
The court sustained a demurrer to the second paragraph of the above answer and overruled it to the first.
The appellant, electing to stand by her demurrer to the first paragraph of the answer, the appellee Nancy Abbott had judgment for costs.
John Lough, Rufus P. Lough, William Yelton and Nancy L. White filed a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action as to them, which was sustained by the court, and they had judgment for costs.
On motion of the appellee Nancy Abbott, certain parts of the complaint and certain interrogatories propounded to her by the appellant were struck out, and the ruling saved by a proper bill of exceptions.
The several rulings above stated against the appellant are presented by assignment of error, and the question arising on the action of the court in sustaining the demurrer to the second paragraph of the answer of the appellee Nancy Abbott, is presented by the assignment of cross-error.
The first question arising on the record relates to the action of the court in sustaining the demurrer of Lough and others to the complaint.
The right of the appellant to prove and have probated the will executed by John Abbott in her favor, and to have the will in favor of Nancy Abbott set aside and revoked, if the facts alleged in the complaint are true, is fully secured to her by the provisions of section 2607, R. S. 1881.
Indeed, it is not seriously contended in this court that the complaint does not contain a cause of action against Nancy Abbott. The contention here is that the other appellees were improperly joined with her in this suit. But the demurrer was not on the ground of misjoinder of causes of action, but was, we have seen, upon the ground that the complaint did not state facts sufficient to constitute a cause of action against them.
As the question whether it was necessary to allege notice on the part of the purchasers of the real estate of John Abbott has not been argued in this court, we have not considered it, but such notice is alleged in the second paragraph of the complaint.
That paragraph, in our opinion, states a cause of action against the purchasers of the real estate from Nancy Abbott, who makes her title through the probated will of John Abbott.
If that will was invalid Nancy Abbott's title under it must fail.
The purchasers from her have an interest in maintaining the validity of that will, as their title, if they had notice of the will in favor of the appellant, must fail if the will fails. That will is the foundation of the title held by them by conveyance from Nancy Abbott, and when the foundation is destroyed their title must fall with it, unless something has occurred to save it. We think these purchasers were proper parties to the action. The law...
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