178 Ind. 258 | Ind. | 1912
Alexander F. Ramsey, of Montgomery county, died testate in March, 1907, leaving as his only heirs, Ms childless widow, Ice H. Ramsey, and a son and daughter by a former wife. His daughter, Hepsey B. Yount, died intestate in November, 1907, leaving as her only heirs, a husband and three minor children. His son, Charles P. Ramsey, died intestate in October, 1908, leaving as Ms only heirs Evelyn Ramsey, his widow, and Rosalind Ramsey, 'a daughter, aged twelve years, who are appellees herein.
The testator died the owner of real and personal property, which, in the complaint, is alleged to have been of the value
In November, 1908, after the death of Charles P. Ramsey, this action was commenced in the Montgomery Circuit Court by his widow and daughter, appellees', to contest the will of Alexander F. Ramsey. Afterwards, the venue of the cause was changed to the Boone Circuit Court.
The complaint alleges that in March, 1907, an instrument, purporting to be the last will of Alexander F. Ramsey, was admitted to probate by the Montgomery Circuit Court; that the same is invalid because said Ramsey, at the time of the execution thereof, was a person of unsound mind, and because the same was unduly executed.
It is further alleged that shortly after the probate of the will, the executor therein named paid to said Charles P. Ramsey the sum of $3,000, which was the amount of the legacy bequeathed to him by the terms of the will, and took from him a receipt for the legacy; that at said time Charles P. Ramsey was a person of unsound mind, and that the acceptance of the $3,000 and the execution of the receipt therefor were procured by the executor by means of certain false and fraudulent misrepresentations, which are set out in detail.
It is also alleged that before filing this complaint to con
Appellees pray that the pretended will be declared invalid, that the probate thereof be set aside, and that the election of Charles P. Ramsey to take under the will be rescinded and held for naught.
All the living devisees and legatees named in the will, and the heirs of those who had died, were made parties defendant, as were also the executor and trustees therein named. A demurrer to the complaint, for insufficient facts, filed by the executor, was overruled, whereupon it filed an answer in two paragraphs, the first of which was a general denial. In the second paragraph it is alleged that immediately after the probate of the will, testator’s son, Charles P. Ramsey, demanded of the executor the payment of the $3,000 legacy, and thereupon the same was paid to him, and he executed to the executor a receipt therefor, in which it is recited that the will of Alexander P. Ramsey has been read by the undersigned, and that the $3,000 is received in full payment of the legacy. The answer further denies the allegations in the complaint relating to fraud of the executor and to the unsoundness of mind of the legatee, and that by reason of the above facts plaintiffs are estopped from demanding any relief. Answers of general denial were filed by the other defendants.
The executor filed a motion to submit the issues to the court for trial without the intervention of a jury, on the ground that the suit was of equitable cognizance. This motion was overruled. Thereupon the executor filed a motion
Appellants insist that the lower court erred in overruling the demurrer to the complaint, because the right of Charles P. Ramsey to contest the will did not, on his death, survive to his heirs; that a will contest is not a civil action, but a special statutory proceeding, and is not governed by our statute relating to the survival of actions; that one not interested in the decedent’s estate when the will was admitted to probate can never acquire the right to institute a proceeding to revoke the probate thereof.
The question raised here has never been decided by this court, and it requires a consideration of our statute relating to wills, and the probate and contest thereof, and of our statute relating to the survival of actions, and, incidentally, of some common-law rules.
The act prescribing who may make a will, and the effect thereof, and regulating the admission of wills to probate, and the contest thereof, was approved May 31, 1852, and is, with certain amendments, still in effect. 2 R. S. 1852 p. 308, §3112 et seq. Burns 1908, §2556 R. S. 1881. By its terms, all persons, except infants and persons of unsound mind, may execute a valid will. §3112 Burns 1908, §2556 R. S. 1881.
Our civil code (§§282-284 Burns 1908, §§281-283 R. S. 1881, 2 R. S. 1852 p. 204) contains the following provisions relating to the survival of actions: §282. “In all cases where actions survive, they may be commenced by or against the representatives of the deceased to whom the interest in the subject-matter of the action has passed.” §283. “A cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment, and malicious prosecution.” §284. “All other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions for promises to marry.” Does the right to contest a will constitute a “cause of action”, within the meaning of the foregoing provisions of our code ? If so, it survives.
In Baker v. State, ex rel. (1887), 109 Ind. 47, 9 N. E. 711, this court, on page 61, approved the definition of “cause of
2. “In the case of Veeder v. Baker [1880], 83 N. Y. 156, 160, it was said: ‘Jurists have found much difficulty in precisely defining a cause-of. action. (Pomeroy on Remedies §452.) It may he said to be composed of the right of the plaintiff and the obligation, duty or wrong of the defendant; and these combined, it is sufficiently accurate to say, constitute the cause of action.’ ”
In American Surety Co. v. State, ex rel. (1910), 46 Ind. App. 126, 131, 90 N. E. 99, 91 N. E. 624, it is said: “A cause of action may be said to arise out of a violation of duty by one person that injuriously affects the rights of another.”
The phrase has also been defined as “the fact, or combination of facts, which gives rise to a right of action. ’ ’ 6 Cyc. 705; Jerome v. Rust (1909), 23 S. Dak. 409, 122 N. W. 344; Davidson v. Fraser (1906), 36 Colo. 1, 84 Pac. 695, 4 L. R. A. (N. S.) 1126.
In 1 Am. and Eng. Ency. Law and Pr. 1005, it is said: “In every case when a suitor in a court of law seeks to have the state act in his behalf, he must show a cause for action by the state; in other words, he must show that he has a cause of action.” In an appended note, on the same page, it is said: “The action to which the phrase refers is the action of the state, through its agent, the court, to which the suitor appeals. ’ ’
At common law, survival and assignability were generally tests each of the other. Blake v. Griswold (1887), 104 N. Y. 613, 11 N. E. 137. Ejectment actions abated on the death of the defendant. 1 Cyc. 57.
Will contests, in modern form, were unknown to the common law. Wills devising real property were not probated. If valid, they took effect immediately on the death of the testator. As muniments of title they were proved in ejectment or partition suits, in the same manner as deeds were. This led to the result that a will might be adjudged valid in one jurisdiction and invalid in another. Page, Wills §312; 16 Ency. Pl. and Prac. 993; Knox v. Paull (1891), 95 Ala. 505, 11 South. 156. The ecclesiastical courts had jurisdiction of testaments bequeathing personalty. These were required to be probated, either in “common form” or in “solemn form”. The former was without notice to the next of kin, while the latter involved a proceeding requiring notice to all persons interested, and was effective against all. Domestic, etc., Missionary Society v. Eells (1896), 68 Vt. 497, 35 Atl. 463, 54 Am. St. 888; Page, Wills §§312, 313. However, if realty and personalty were devised and bequeathed by the same instrument, the ecclesiastical court probated it,
The scope and effect of the modern statutory contest of wills closely corresponds to the probate, in solemn form, by the ecclesiastical courts, of testaments bequeathing personalty, except that modern contests determine the validity of the will as to all the property disposed of, instead of limiting the judgment to personalty; and except, further, that in most jurisdictions statutory contests must be filed within a comparatively short period-(in Indiana three years) after the “common” or ex parte probate. At common law, at any time within thirty years after the probate in common form the executor might be compelled by any interested person to prove it in solemn form. Luther v. Lather (1887), 122 Ill. 558, 13 N. E. 166.
In Davis v. State, ex rel. (1889), 119 Ind. 555, 22 N. E. 9, a proceeding was instituted by filing a claim against a decedent’s estate to recover a statutory penalty for which the intestate became liable in his lifetime. The suit was to recover a penalty imposed by §6339 R. S. 1881, §10204 Burns 1908, on persons making fraudulent tax lists. It was conceded that, at common law, the cause of action died with the person, but it was held that by virtue of our statute it survived. The opinion was rendered by Mitchell, J., in the course of which it was said: “In Western Union Tel. Co. v. Scircle, supra [(1885), 103 Ind. 227, 2 N. E. 604], the court, in giving a construction to this last section, said: ‘"When
· Western Union Tel. Co. v. Scircle, supra, was to recover a statutory penalty for refusing to deliver a telegram, and it was held that the cause of action survived the death of the original party in interest.
In Feary v. Hamilton (1895), 140 Ind. 45, 39 N. E. 516, this court said: f£The rule is that where the injury complained of affects primarily and principally property and property rights, * * * the cause of action survives. ’ ’
In Burnett v. Milnes (1897), 148 Ind. 230, 46 N. E. 464, an application to admit a will to probate was contested, and resulted in a judgment refusing its admission. Afterwards a proceeding was instituted by one of the legatees—a married woman — to vacate the judgment for fraud. Before an answer was filed, the suing legatee died intestate, and by order of court her administrator and heirs were substituted as parties plaintiff. In passing on the effect of our statute, which provides that no action shall abate by the death of a party if the cause of action survives (§272 Burns 1908, §271 R. S. 1881), this court said: The death of the wife did not cause the action to abate. .Section 272 Burns 1894. Appellant was in court to answer the cause of action set forth in the original complaint. The cause of action was not changed by the death of said plaintiff, and her administrator was properly substituted as a plaintiff, and the husband and
This court has ever placed a liberal construction on the statute providing for survival of actions, as shown by a consideration of the opinions. Pittsburgh, etc., R. Co. v. Swinney (1884), 97 Ind. 586; Brown v. Clow (1902), 158 Ind. 403, 62 N. E. 1006; State, ex rel., v. Houston (1837), 4 Blackf. 291; Hess v. Lowrey (1890), 122 Ind. 225, 23 N. E. 156, 7 L. R. A. 90, 17 Am. St. 355; Davidson v. Koehler (1881), 76 Ind. 398; American Surety Co. v. State, ex rel., supra; Gimbel v. Smidth (1856), 7 Ind. 627; Newman v. Gates (1905), 165 Ind. 171, 174, 72 N. E. 638, 6 Ann. Cas. 649.
Counsel for appellants call our attention to the decisions of this court in Heavenridge v. Nelson (1877), 56 Ind. 90, and Eltzroth v. Binford (1880), 71 Ind. 455, wherein it was held that the right of a widow, conferred by statute, to accept or reject the provisions for her made in her husband’s will is personal, and can be exercised by her alone, and claim that the doctrine there announced is applicable here. We think the position is untenable under our statute. The law in force when Heavenridge v. Nelson, supra, was decided, gave to the surviving widow a certain interest in her deceased husband’s property. 1 R. S. 1876 p. 411. Another section of the act provided that if the husband left a will, the widow might elect to take under it, instead of the law. She was simply given the right to choose between the provisions of the law and those of the will. This in nowise constituted a cause of action. The widow had no occasion to seek the action of the State, through its courts, to aid her. There was no wrong to remedy. She had the right to choose, and this right was personal to her. If she had not the mental power to exercise the choice, her property rights were determined by other provisions of the statute.
Counsel for appellants, under-their proposition that this cause of action did not survive, cite a number of Illinois authorities which support their contention. Storrs v. St. Luke’s Hospital (1899), 180 Ill. 368, 54 N. E. 185, 72 Am. St. 211; McDonald v. White (1889), 130 Ill. 493, 22 N. E. 599; Jele v. Lemberger (1896), 163 Ill. 338, 45 N. E. 279; Selden v. Illinois Trust, etc., Bank (1909), 239 Ill. 67, 87 N. E. 860, 130 Am. St. 180. In the last cited case, among the reasons given for holding that the right to contest a will does not survive, is that such right is not assignable. Another reason given is that in Illinois an action to recover a statutory penalty does not survive the death of the defendant. Whether in that state there is a statute governing the survival of actions, or
Assuming, without deciding, that under the allegations of the complaint appellees would have no right to contest this will unless Alexander F. Ramsey died the owner of real estate, this court would not be warranted in reversing the judgment for the defect in question.
The complaint alleges that by the terms of the will the defendants are given “the whole of the property of said Alexander P. Ramsey, real and personal, of the value of «$400,000, to the exclusion of * * * Charles Ramsey.” Appellants contend that the above is merely a recital, and does not constitute an averment of ownership of real estate. In view of the state of the record, it is unnecessary to decide this point. At the trial, without objection, plaintiffs proved that Alexander P. Ramsey died the owner of real estate of great value.
Section 700 Burns 1908, §658 R. S. 1881, provides that this court shall not reverse a judgment for any defect in form, in any pleading, which might be amended by the court below, but such defect shall be deemed to be amended in the Supreme Court. If the complaint was defective in the particular claimed, the court below could have permitted it to have been amended so as to conform to the evidence, and consequently this court must deem it to be so amended. Noble v. Davidson (1912), 177 Ind. 19, 96 N. E. 325, and cases cited.
The lower court did not err in overruling the motion to submit the entire cause to the court for trial without the intervention of a jury. Lamb v. Lamb (1886), 105 Ind. 456, 5 N. E. 171, and authorities cited. We do not think the court erred in refusing to submit what is termed by appellants, the issue of rescission, to the court, without the intervention of the jury.
It is appellants’ theory that the complaint is dual in its nature, and seeks not only to contest the will, but to procure a decree in equity rescinding the acceptance of the legacy. The only basis for this theory is found in the prayer for relief, at the conclusion of the complaint, wherein plaintiffs
Rule 22 of this court provides that appellants’ brief shall contain “a concise statement of so much of the record as fully presents every error and exception relied on,” etc. Appellants’ failure to comply with this rule waives their right to a consideration of the two instructions. Consolidated Stone Co. v. Morgan (1903), 160 Ind. 241, 66 N. E. 696; Cleveland, etc., R. Co. v. Stewart (1903), 161 Ind. 242, 68 N. E. 170; Chicago, etc., R. Co. v. Williams (1907), 168 Ind. 276, 79 N. E. 442.
In their points and authorities, appellants question the action of the court relating to other instructions given and refused. These have been considered, and we are of the opinion that the court committed no reversible error in respect thereto.
Ice IT. Ramsey, widow of testator, was examined as a witness, by plaintiffs. On cross-examination she was asked the following question : “Q. I will ask you if on the trial of your ease at Frankfort you didn’t testify about this circumstance of Mr. Ramsey sitting at that desk and your coming in and found Miss Pursel with her hand on your husband’s shoulder, and if it isn’t true that in your testimony in regard to that circumstance and in regard to your going home, you never, at any time said in that testimony that Mr. Ramsey said, I don’t remember what I was doing?” The court
Other minor questions are raised by appellants in regard to the admission and exclusion of evidence, but a consideration of them discloses no error warranting a reversal of the judgment.
Judgment affirmed.
Note—Beported in 98 N. E. 177. See, also, under (1) 40 Cyc. 1241; (2) 1 Cyc. 641; (3) 36 Cyc. 1173, 1188; (4) 40 Cyc. 1240; (6) 14 Cyc. 54; (7) 40 Cyc. 1244; (8) 3 Cyc. 291; (9) 31 Cyc. 84; (10) 40 Cyc. 1268; (11) 40 Cyc. 1252; (12) 40 Cyc. 1319; (13) 31 Cyc. 84; (14) 38 Cyc. 1693; (15) 40 Cyc. 1334; (16) 38 Cyc. 1736; (17) 40 Cyc. 1335; (19) 38 Cyc. 1683; (20) 40 Cyc. 1337; (21) 2 Cyc. 1014; (22) 40 Cyc. 2708; (23) 40 Cyc. 2714; (24) 3 Cyc. 336; (25) 40 Cyc. 2517; (26) 3 Cyc. 348. As to relief in equity from orders and decrees in probate courts, see 106 Am. St. 639. As to tlie jurisdiction of equity to construe a will, see 129 Am. St. 78. As to the acceptance of a benefit under a will as affecting the right to attack its validity, see 3 Ann. Cas. 525. What is testamentary capacity, see 27 L. R. A. (N. S.) 2. For drunkenness as affecting testamentary capacity, see 39 L. R. A. 220. On the question of opinion evidence by nonexpert as to testamentary capacity of another, see 37 L. R. A. (N. S.) 591. As to the right of a witness to give opinion in respect to mental capacity in will contest, see 36 L. R. A. 66. As to -what evidence is admissible as bearing on the credibility of a witness, see 82 Am. St. 25.