Whitesell v. Strickler

Citation78 N.E. 845, 167 Ind. 602
Case DateOctober 09, 1906
CourtSupreme Court of Indiana

Rehearing Denied January 9, 1907.

From Hancock Circuit Court; Daniel L. Wilson, Special Judge.

Suit by Elizabeth Strickler against Elmira J. Whitesell and others. From a decree for plaintiff, defendants, except one, appeal. Transferred from Appellate Court under subd. 2, § 1337j Burns 1901, Acts 1901, p. 565, § 10.


Samuel C. Whitesell, Downing & Hough, A. C. Lindemuth and Robbins & Starr, for appellants.

B. F Mason and Thomas J. Study, for appellee Elizabeth Strickler.


Hadley, J.

Amos Strickler died testate in Wayne county, Indiana, October 23, 1899. He executed his will on March 10, 1889. On November 6, 1899, the will was proved, admitted to probate, and duly recorded. By the terms of his will, after providing for the payment of all his debts, he bequeathed to his widow, appellee Elizabeth Strickler, all of his estate both real and personal. The value of the estate thus bequeathed was about $ 10,000. Besides his widow, he left, as his only heirs, the defendants, Elmira J. Whitesell, his daughter, Minos Strickler, his son, and Russell Strickler, his grandson. After the probate of the will, the widow elected to renounce the will and take under the statute. Appellant Henry C. Starr was thereupon appointed administrator of the estate, gave bond, and proceeded to the settlement of his trust, and has converted all of the estate, both real and personal, into cash, and has the proceeds thereof, less expenses, etc., in his possession. The widow, who was the plaintiff below, brought this suit to set aside her election to take under the statute, to the end that she might take under the will. She bases her right to maintain the suit upon the false and fraudulent representations made by the appellees Elmira J. Whitesell and her husband, Samuel C. Whitesell, and the judge of the Wayne Circuit Court. The prayer of the complaint is that appellee's said election to reject the will and take under the statute be canceled and set aside, and that the administrator of the estate be ordered and directed to pay to her all of the money in his hands after the payment of debts and costs of administration.

All of the heirs of the decedent, the administrator of the estate, and the husband of Elmira J. were made parties defendant, and appeared to the suit, and all demurred to the complaint. The demurrer to the complaint, omitting the formal parts thereof and the names of the demurring parties, is in the following words: "Each separately and severally demurs to the plaintiff's complaint, and for cause of demurrer says that said amended complaint does not state facts sufficient to constitute a cause of action." The record shows that the "court overrules the separate demurrer by each of the defendants to the amended complaint, * * * to which ruling of the court the defendants object and except." All of the defendants below, except Minos O. Strickler, filed answers. A demurrer was addressed to each affirmative paragraph and each of said demurrers was sustained. All of the defendants who appeared to the suit thereupon withdrew their respective answers of general denial and elected to stand upon the affirmative answers. The defendant Minos O. Strickler, who is made an appellee here, was duly defaulted. There was then a finding and judgment for the plaintiff, setting aside her election to take under the law.

(1) It is earnestly contended by counsel for appellee that under the exceptions reserved to the rulings on the demurrers to the complaint, and the several assignments of error thereon, no question upon the demurrers is presented for decision, because the record discloses separate assignments of error based upon joint exceptions. The assignments on the ruling upon the demurrers to the complaint, as made, are separate and not joint. It will be noticed from the above quotation from the record that the exception reserved was, as termed, "by the defendants." From the nature of the proceedings up to this point, we think it is misleading and improper to construe the plural pronoun employed by the clerk in recording the minute, as characterizing the act of the defendants as being joint.

When two or more parties desire to demur separately to the same pleading, on the same ground, the law does not require each to file a separate paper. If they choose, all may act separately in demurring, and yet unite in the same paper, provided it is clearly stated therein that they act severally and not jointly.

The demurrer under consideration, after setting forth the names of all the defendants as demurring parties, proceeds, "each separately and severally demurs * * * and for cause of demurrer says," etc. Not only do they employ the distributive word "each" and the singular verbs "demurs" and "says," but the association of these with the words "separately" and "severally" make it too plain for argument that the paper was intended to be, and in fact was, the several demurrer of each of the defendants. It was so understood by the court, for the record goes on, "and thereupon the court overrules the separate demurrer by each of the defendants to the complaint, to which ruling of the court the defendants except." What ruling is here referred to as reserved? Certainly no other than that described immediately preceding. It could have been no other, because the record shows there was no other ruling on demurrer to the complaint. That ruling, though a separate act, and in a sense in gross, is as clearly distributive in effect as if the court had repeated and announced separately the ruling against each of the six demurrants; and, the defendants all being severally, though in the same way, affected by the ruling, we see no reason why they might not unite in reserving several and appropriate exceptions. Stametz v. Mitchenor (1906), 165 Ind. 672, 75 N.E. 579. Furthermore, under these facts, we think the words "defendants except" mean the same as if the clerk had written, "each of the defendants excepts," which, without any question, should be construed distributively.

An appeal is allowed by the statute solely for the correction of errors of the trial court. The assignment of error is termed the complaint in this court, and must be consistent, and correctly and specifically present to the court, in manner and form as presented to the lower court, the particular rulings and subject-matter thereof, as shown by the record to have been made and excepted to.

As a joint complaint in the trial court must be good as to all who join or good as to none, so a joint assignment to be sufficient must be founded upon a ruling against all, and which must be erroneous as to all, or it will be held so as to none. Orton v. Tilden (1887), 110 Ind. 131, 10 N.E. 936, and cases cited. Likewise a separate assignment, founded upon a joint ruling against one or more appellants, presents no question to this court. Green v. Heaston (1900), 154 Ind. 127, 56 N.E. 87, and cases cited. It is the same questions that were ruled upon by the trial court, presented here in the same way, that are reviewable on appeal.

In identifying the question appealed, it is plain that the rules of procedure should be strictly construed, in fairness to the trial court, if for no better reason, but, as in this case, when two or more persons desire to take the same step, but to act separately, and for convenience unite in presenting one paper, and the court by a single action rules against all, the exceptions to the ruling as recorded by the clerk should be liberally construed with a view of according an appropriate exception to each exceptor. And such exception should be allowed unless clearly incompatible with the record.

When an appellant excepts to a ruling for the purpose of presenting it to a court of review, it should at least be presumed that his exception was intended to be in the capacity and relation that would make it effective. The assignments of error predicated upon the ruling on the demurrers to the complaint are several, and we think the same are supported by proper exceptions reserved at the trial. Our holdings on exceptions reserved to rulings on demurrer to the complaint in Noonan v. Bell (1902), 159 Ind. 329, 64 N.E. 909, and Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460, 68 N.E. 262, while perhaps the logical result of prior rulings, if pressed to an extreme, appear to us, on further consideration, as too restricted, and the same are now disapproved.

(2) Was the complaint sufficient? It counts upon fraud and undue influence of the defendants Whitesell and Whitesell and the judge of the Wayne Circuit Court, whereby the plaintiff was induced to renounce the provisions made for her by the will of her deceased husband, and in lieu thereof accept her portion of her husband's estate under the law.

It was held in Garn v. Garn (1893), 135 Ind. 687 35 N.E. 394, that the policy of the law of this State has ever been to deal liberally with widows in the distribution of their husbands' estates. In harmony with this doctrine the statute guarantees to a widow the right of election between the provisions of her husband's will and those provided by the statute, and the right to make the same understandingly. No misrepresentation, no concealment or suppression of the facts, no appeal to family duty or obligation, will be allowed by the court to thwart her free will, and prevent her from arriving at an intelligent decision. As was said in the case of Garn v. Garn, supra: "Nothing less than an act intelligently done will be sufficient. She should know, and if she does not, she should be informed, of the relative values of the properties between...

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5 cases
  • Schilling v. Quinn
    • United States
    • Indiana Supreme Court of Indiana
    • November 1, 1912
    ...State ex rel. Wood, 172 Ind. 302, 88 N. E. 505;Bonham v. Doyle, 39 Ind. App. 438, 77 N. E. 859, 79 N. E. 458;Whitesell v. Strickler, 167 Ind. 602, 78 N. E. 845, 119 Am. St. Rep. 524. [6] Appellant has waived a consideration of the first cause assigned for a new trial by failing to set out i......
  • Schilling v. Quinn, 21,979
    • United States
    • Indiana Supreme Court of Indiana
    • November 1, 1912
    ...... State, ex rel. (1909), 172 Ind. 302, 88. N.E. 505; Bonham v. Doyle (1907), 39. Ind.App. 438, 77 N.E. 859, 79 N.E. 458; Whitesell v. Strickler (1907), 167 Ind. 602, 78 N.E. 845, 119 Am. St. 524. . .          Appellant. has waived a consideration of the first cause ......
  • Whitesell v. Strickler
    • United States
    • Indiana Supreme Court of Indiana
    • October 9, 1906
    ...167 Ind. 60278 N.E. 845WHITESELL et al.v.STRICKLER et al.No. 20,937.Supreme Court of Indiana.Oct. 9, Appeal from Circuit Court, Hancock County; E. W. Felt, Judge. Action by Elizabeth Strickler and others against Elmira J. Whitesell and others. From a judgment in favor of complainants, rever......
  • First State Bank of Bourbon v. Binkley (In re Liquidation of Bourbon Banking Co.), 27420.
    • United States
    • Indiana Supreme Court of Indiana
    • January 21, 1941
    ...Company, and therefore no basis for an adjudication of the questions involved in this law suit. See Whitesell et al. v. Strickler et al., 1906, 167 Ind. 602, 78 N.E. 845,119 Am.St.Rep. 524, and cases cited. The mandate in the original opinion is modified, and the judgment is reversed, with ......
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