OPINION
DUDINE, J.
This
was an action instituted by appellee against appellants, to
establish a constructive trust, of which appellee would be
declared the beneficiary of certain property owned by one
Elva Wallace Thomas at the time of her death, she having died
intestate, leaving appellant, Edgar Thomas, her sole heir at
law.
The
complaint was in one paragraph. Appellants filed separate
demurrers to the complaint, all of which were overruled
whereupon appellants filed an answer of general denial, and
an answer purporting to allege an estoppel. On motion of the
appellee said second paragraph of answer was stricken.
The
cause was submitted to the court for trial on the issue
formed by the complaint and answer in general denial, and the
court found for the plaintiff and rendered judgment
establishing the trust prayed for.
Appellants
seasonably filed a motion for a new trial, assigning as
grounds therefor that: (1) The finding is not sustained by
sufficient evidence; (2) the decision is not sustained by
sufficient evidence; (3) the finding is contrary to law; (4)
the decision is contrary to law, which motion was overruled,
and this appeal was perfected.
The
errors relied upon for reversal and discussed in
appellant's brief are: (1) Error in overruling each of
said demurrers to the complaint; (2) error in striking out
appellant's second paragraph of answer; (3) error in
overruling the motion for new trial.
The
pertinent parts of the complaint are as follows:
"Plaintiff complains of the defendant and says that the
plaintiff is, and was, the niece of Elva Wallace Thomas,
deceased, and who departed this life on the 20th day of
April, 1930 . . . that her said aunt married the defendant,
Edgar Thomas, on the 19th day of June, 1929, and from that
day until the day of her death lived with the said husband,
Edgar Thomas, the defendant herein.
Plaintiff further says that shortly after her said aunt
married the defendant, Edgar Thomas, her said aunt and the
defendant, Edgar Thomas, visited this plaintiff at her home,
and while visiting with plaintiff at said time, said aunt, in
the presence of the defendant, Edgar Thomas, told this
plaintiff that she was going to provide for the plaintiff in
her will so plaintiff would get a part of her estate.
Plaintiff further says that on Saturday, April 12, 1930, the
plaintiff's said aunt, Elva Wallace Thomas, was 71 years
of age and was of sound and disposing mind and memory, and
had mental capacity sufficient to know and understand the
value of her property, the number and names of the persons
who were the natural objects of her bounty, and did realize
the uncertainty of life of a person of her age and condition;
that while in said condition, on said day and date,
plaintiff's said aunt did prepare, write and sign, in her
handwriting, her last will and testament, which last will and
testament was and is in the words and figures following, to
wit:
April
12th, 1930.
"My
wish is that Beatrice Briggs, my niece, in case of my death,
should have my large mirror--8 foot--and my diamonds and
brass corner piece, and any lamps she might wish; also sewing
cabinet and buffet mirror. And that Inex Harvey, a niece, be
given my cameo pin and piano. Charles Nowlin and family, a
nephew, $ 100.00 Dollars, in cash, and R. W. Mellish, a
nephew be given $ 1,000.00 in cash, and the note for $ 300.00
which he borrowed be considered paid. Also, that all my debts
be paid and $ 500.00 be paid for monument. The remainder of
my personal property and real estate be sold at its value and
equally divided between my niece, Beatrice Briggs, and my
husband, Edgar Thomas.
"I
also desire Edgar Thomas, my husband, to live in my
residence, 228 South 5th Street, for one year, provided it is not sold, and have the income from same,
but he must pay the taxes and insurance for that period of
time.
"I
also bequeath to my sisters, Mrs. Helen Woodruff and Mrs.
Hariet Bullock, each $ 5.00, also $ 5.00 to a nephew, Everett
Nowlin.
"This
is my last statement at noon April 12th, 1930.
Mrs.
Elva Wallace Thomas,
Clara
Owens,
Lora
Thomas.
"That
the said Elva Wallace Thomas was, on said 12th day of April
1930, able to be up and around her home and able to help with
her housework; that on the night of April 12, 1930, the said
Elva Wallace Thomas told the defendant, Edgar Thomas, about
her said will.
"Plaintiff
further says that on Monday, April 14, 1930, plaintiff's
said aunt, Elva Wallace Thomas, was then confined to her bed
because of illness, and on said day asked her husband, the
defendant Edgar Thomas herein, to have said will witnessed
and finished, and the defendant, Edgar Thomas, at said time,
promised plaintiff's said aunt that he would do so.
"Plaintiff
further says that on Tuesday and Wednesday, the 15th and 16th
days of April, 1930, plaintiff's said aunt, who was still
confined to her bed on account of illness, but still retained
her mental faculties, asked her said husband, the defendant,
Edgar Thomas, several times each day to have her said will
witnessed and finished, and each time the said defendant,
Edgar Thomas, would and did promise plaintiff's said aunt
that he would have her said will witnessed and finished, and
during all of said time the defendant's said wife, having
confidence in and trusting her said husband and believing he
would fulfill his promise to have her will witnessed and
finished, depended and relied upon her said
husband having her said will finished and duly executed. That
said defendant, Edgar Thomas, failed and neglected to procure
the witnessing of said will on each of said dates, and
fraudulently failed to carry out his promise to his said
wife.
"Plaintiff
further says that the defendant, Edgar Thomas, had full
knowledge of the terms and conditions of said will from and
after Sunday, April 13, 1930, and knew the condition of his
said wife's health during all of the time that he
promised her that he would have her will witnessed and
executed.
"Plaintiff
further says that the illness of her said aunt, Elva Wallace
Thomas, became more severe on the night of April 16, 1930,
and from said time until her death she was unable to converse
with anyone; that she continued to grow worse, and on
Saturday, April 19, 1930, she was in a stupor a part of the
time; that in the afternoon of said day
the defendant had said will witnessed by Clara Owens and Lora
Thomas, and the said Elva Wallace Thomas died on the 20th day
of April, 1930.
"Plaintiff
further says that after her said aunt, Elva Wallace Thomas,
prepared said will on the 12th day of April, 1930, up to and
until she was unable to talk, she was asking and requesting
her said husband to have said will duly executed, and was
desirous that this plaintiff would receive a part of her
estate, as provided in said will.
"Plaintiff
further says that after plaintiff's said aunt died, the
said defendant, Edgar Thomas, cut the names of the said
witnesses off of said will of the said Elva Wallace Thomas,
after which he went to said witnesses and told them not to
say anything about said will; that they would not lose
anything if they did not tell anyone about said will; that
said defendant, Edgar Thomas, also informed
said witnesses that he would treat this plaintiff right if
said will was not mentioned by said witnesses.
"Plaintiff
further says that the said defendant, Edgar Thomas, knew at
all times that his wife was asking him to get her said will
duly witnessed and executed, and he was promising her that he
would have said will duly executed; that if his said wife
died intestate that he would inherit all of her property,
both real and personal.
"Plaintiff
further says that the defendant, Edgar Thomas, failed and
refused to tender said will for probate and was appointed and
qualified as administrator of said estate on the 24th day of
April, 1930, and is still acting as administrator of said
estate. That thereafter, to wit, on or about the 19th day of
May, 1930, this plaintiff filed a petition in the Vigo
Circuit Court, Probate Division, asking that said defendant,
Edgar Thomas, produce said will in court; that the court
issued a citation requiring the said defendant, Edgar Thomas,
to produce said will, and on May 23, 1930, said defendant,
Edgar Thomas, did produce said will in open court and filed
his objections to the probate thereof. That said plaintiff
duly offered said will for probate, with proof of its due
execution. That thereafter, to wit, on June 10, 1930, the
defendant, Edgar Thomas, filed his complaint to resist the
probate of said will; that upon the trial of said objections
to the probate of said will, . . . the said will was refused
of probate. . . .
"Plaintiff
further alleges that by reason of the aforesaid acts of the
defendant, Edgar Thomas, as herein alleged, in fraudulently
failing to have said will duly executed, and in preventing
his said wife from having the said will duly executed, by
reason of her confidence in him and relying upon him carrying
out his said promises, the said Edgar
Thomas now holds in trust for this plaintiff all that part of
the real estate that would have come to this plaintiff by
said will had said will been duly executed.
"Plaintiff
further says that because of the acts of the...
