Traudt v. Hagerman

• Decision Date: 20 June 1901
• Citation: 60 N.E. 1011,27 Ind.App. 150
• Parties: TRAUDT v. HAGERMAN et al.
• Court: Indiana Appellate Court

27 Ind.App. 150

60 N.E. 1011

TRAUDT

v.HAGERMAN et al.

Appellate Court of Indiana.

June 20, 1901.

Appeal from circuit court, Posey county; O. M. Welborn, Judge.

Suit to quiet title by Frederick Hagerman and others against Kate Traudt. From a decree in favor of plaintiffs, the defendant appeals. Reversed.

G. V. Menzies and L. M. Wade, for appellant. F. P. Leonard and H. F. Clements, for appellees.

COMSTOCK, J.

Appellees, who were plaintiffs below, brought this suit to quiet title to an undivided one-third interest in certain real estate in the city of Mt. Vernon, Ind. The complaint consisted originally of one paragraph, to which an answer was filed. Subsequently a second paragraph was filed. To this a demurrer for want of facts was overruled. Plaintiffs dismissed as to the first paragraph, and, appellant failing to plead further to the second, judgment was rendered thereon in favor of appellees, quieting their title to said real estate. The material averments of the second paragraph of the complaint, upon which the judgment was rendered, are: That on the 22d day of June, 1898, one Christina Traudt died seised as the owner in fee simple of certain lots and parcels of real estate in the city of Mt. Vernon, Ind., which are described. That said Christina Traudt died testate, leaving as her only heir at law Philip Traudt, her widower. That neither the said Christina Traudt nor said Philip Traudt ever had children. That the last will and testament of Christina Traudt was duly probated on the 23d day of June, 1898. The will is set out in full. It contains but three items-First, provision for the payment of debts; second, devise and bequeathment of all the estate, real and personal, to appellant, Katie Traudt; third, appointment of an executor. That after the probate of the will plaintiffs caused executions on judgments rendered in their favor against said Philip Traudt to be issued and placed in the hands of the sheriff of Posey county, who levied the same upon the right, title, and interest of said Philip Traudt in the real estate of which said Christina Traudt died seised in fee simple. That, by virtue of said executions, the said interest of Philip Traudt in the real estate was sold on the 10th day of September, 1898, to the plaintiffs, and, the said Philip Traudt failing to redeem the real estate, a deed was executed one year after the sale by the sheriff to the plaintiffs. That on the 10th day of August, 1898, said Philip Traudt attempted to elect to take under the last will and testament of Christina Traudt, and filed in the office of the clerk of the Posey circuit court his written election to take under the will of his wife, instead of under the statute of descentsof Indiana, setting out the written election of Philip Traudt, an acknowledgment and recording of the same, followed by the averments that the defendant, by virtue of the last will and testament of Christina Traudt, claims to be the owner of all the real estate, and plaintiffs, by virtue of their deed from the sheriff of Posey county, are the owners of an undivided one-third of said real estate, concluding with the prayer that the plaintiffs' title to one-third of the real estate be quieted against the appellant. The overruling of the demurrer is the only error assigned.

The question presented is whether a widower must be a beneficiary under the will of his wife before he can make an election. The language of the statute is “to elect to take.” The learned trial court evidently took the view that because there was no provision made by the will for the widower there was nothing to take,-nothing to choose between. Upon this construction, by parity of reasoning, if any provision, though insignificant, had been made, such provision for the husband would have given him the choice of election. We think this was not the purpose of the legislature. The right of election does not depend upon the amount devised to the husband or the wife. In Parvin v. Wimberg, 130 Ind. 571, 30 N. E. 793, 15 L. R. A. 779, 30 Am. St. Rep. 262, the court say: “The purpose of construing a statute is to arrive at the intention of the legislature. For that purpose the courts will look to the whole statute and all its parts, and, when such intention is ascertained, it shall prevail over the literal import and the strict letter of the statute.” The legislature's intention, as collected from an examination of the whole as well as the separate parts of a statute, will prevail over the literal import of particular terms, and will control the strict letter of the statute, when an adherance to such strict letter would tend to injustice, to ambiguity, or to contradictory provisions. In the construction of the statutes the prime object is to ascertain and carry out the purpose of the legislature in their enactment. To do this the words used in the instrument should be first considered in their literal and ordinary...