51 N.E.2d 83 | Ind. Ct. App. | 1943
Lead Opinion
This is an action brought by the appellee Lambert against his co-appellee and the appellants Bowes, executrix, and Morgan, to set aside and revoke the probate of the last will and testament of Beatrice Mary Klaus Lambert, deceased.
The complaint alleged, among other things, that on the day of the execution of said pretended will the testatrix was of unsound mind and incapable of making a will, and the case was tried on that theory. The appellants separately answered in general denial and separately filed second paragraphs of answer which are so similar that they may be considered together. The strongest alleges that according to the terms of the will the appellee Lambert, husband of the testatrix, was to receive one-third of the estate and the appellant Morgan, her brother, was to receive two-thirds; *367 that twenty-two days after the death of the testatrix and ten days after the will was admitted to probate the appellee Lambert, with full knowledge of decedent's condition of mind when the will was executed and all of the conditions under which it was executed and for the purpose of settling the estate, entered into a written agreement with the appellant Morgan which recited that whereas they were devisees under the will, the personal property had been inventoried, and they desired to purchase the personal property at private sale for cash in order to save same from public auction, it was agreed that Lambert would take property of the value of $540.00 and Morgan would take property of the value of $80.00, and it was further agreed that each would receipt the executrix therefor as a part of their distributive share of said estate on final settlement. It is further alleged that the executrix was informed and approved of the agreement and solely because of it had taken the receipts and turned the property over to the two, who had each accepted it as part of his distributive share as legatee under the will. That Morgan had since given away the property received by him to persons unknown to the executrix, and that because of the premises Lambert should be estopped from contesting the will. Demurrers for want of facts were sustained and the appellants claim error.
The appellants by this answer undertake to assert an estoppel. They say that the appellee Lambert, by accepting an amount of personal property and yielding an amount to Morgan, all with full knowledge, elected between inconsistent courses of action and will be confined to that which he adopted.
The appellee mentions many particulars in which he claims the answer was deficient but it will be necessary *368
to discuss only one of them. Estoppels are not favored in 1-5 the law. It has frequently been said that they are odious, 31 C.J.S. p. 193, § 4. The doctrine springs from equitable principles, and is designed to aid the law in the administration of justice where without its aid injustice might result. TheState of Indiana v. Mutual Life Insurance Company of New York
(1910),
Neither the appellee Lambert nor the appellant Morgan testified in the case, although both had lived with *369
the testatrix about the same length of time and until her 6, 7 death. The record is silent as to any reason for the failure of either to testify. The appellants, while claiming that the failure of Morgan to testify was unimportant, seek to invoke the rule which we state generally as follows: Where a party has the power and opportunity of producing a witness, presumably favorable to him, who could further enlighten the court or jury, his failure to produce such witness gives rise to an inference that such witness if produced would give testimony unfavorable to the party failing to produce him. As we understand appellants' position, they believe we should consider this matter in connection with the assigned error that the verdict is not sustained by sufficient evidence and is contrary to law. It has been held that a carefully worded instruction involving the rule above stated may be given in a proper case, and that the jury has a right to consider such a situation in weighing the evidence. Indiana Union Traction Company v.Scribner, Administrator (1911),
It is asserted that the evidence is insufficient to support the verdict of the jury, which contention requires an examination of all of the evidence in the case, and we are reminded that 8. although we may not weigh the evidence, it is nevertheless our duty to reverse if there is no evidence to support the verdict on any material point. See Pierson v. Simmons,Trustee, et al. (1938),
Finding no error, the judgment is affirmed.
NOTE — Reported in
Addendum
ON PETITION FOR REHEARING
In their petition for rehearing the appellants insist that the appellee Lambert elected to and did receive and retain a benefit under the will with full knowledge of the mental condition of the testatrix at *371
the time the will was executed, and he is therefore estopped to contest the will regardless of all else. They rely largely upon the case of Hight v. Carr (1916),
It must be remembered that we are dealing with a demurrer to the answers filed by appellants and that "where an estoppel is relied upon, it must be pleaded with particularity and 9. precision, and nothing can be supplied by intendment, and, when there is ground for inference or intendment, it will be against, and not in favor of the estoppel." Dudley et al. v.Pigg (1898),
In Hight v. Carr, supra, at p. 45 the court quotes Bigelow on Estopped as follows: "`A party cannot occupy inconsistent positions; and where one has an election between 10, 11 several inconsistent courses of action, he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the facts, determines his election and works an estoppel.'" And the court further says: "Appellant was charged with knowledge of his legal rights and if, with actual knowledge of all material facts and circumstances surrounding the execution of the will and his subsequent action, he elected then to accept, as such, compensation for the legacy given him by such will, he is now estopped to deny the *372 validity of that instrument without first restoring the benefit received, unless his election has been induced by fraud, in which case he may rescind such election by restoring the benefits received." In that case, however, the pleading under consideration alleged the acceptance and retention of the benefit. The appellants, in the argument portion of their brief on petition for rehearing, say that the appellee Lambert "retains the benefit, keeps the property, never rescinds his action, . . .," and if that language were included in the answers a different question might be presented, but we find no such allegations, nor any equivalent thereto, in their answers. The answers do allege that the appellant Morgan disposed of the property received by him before the commencement of this action, but are silent as to the disposition or retention of that received by Lambert.
The petition for rehearing is overruled.
NOTE — Reported in 51 N.E.2d 897.