22 Colo. App. 543 | Colo. Ct. App. | 1912
The appellees were plaintiffs and had judgment in the district court. The essential facts upon which the judgment depends, as they appear from the complaint of the plaintiffs below, as well as the evidence, are the following:
Bertha E. Rohlfing died on August 5th, 1907,
The first answer of the defendants to the plaintiffs’ complaint consisted of (1) specific admissions and denials of its allegations, and (2) what was called a “further answer and cross-complaint”. The substance of the second defense of the answer was that, at the time of the making of his wife’s will, Frederick L. Rohlfing was indebted to defendants Deutsch, Neef and Zang, besides a number of other persons, and at that time, or shortly prior thereto, Frederick L. Rohlfing had property in his own name,
A replication was filed to the first defense of the answer, denying all new matters therein. (Since counsel for both parties are agreed that the first défense consisted of admissions and denials,' and contained no “new matter”, the replication may .be disregarded, as superfluous.) At the same time, the plaintiffs demurred to the “further answer and cross-complaint” for insufficiency. The demurrer was sustained, and the defendants were given permission to amend their answer. Within the time allowed for that purpose, the defendants filed their amended answer, which contained three subdivisions, each of the second and third subdivisions commencing with the words, ‘ ‘ For a further answer and cross-complaint,” etc. Counsel are agreed that the first and third subdivisions of the amended answer are respectively the same as the first defense, and the “further answer and cross-complaint”, contained in the original answer. In the second sub
The amended answer contained a prayer asking that the conveyance from Frederick L. Rohlfing to his wife of a portion of the property described in
The plaintiffs filed a motion to strike out each of the three subdivisions of the amended answer severally, assigning separate and specific reasons for the motion with respect to each. The ground alleged for moving against the first subdivision of the answer appears to have been that no rule or order had been entered permitting the defendants to amend their first defense, while the ground of the motion as to the third subdivision was that its material allegations were identical with that part of the original answer, which had been adjudged insufficient on demurrer. The reasons assigned for moving to strike out the second subdivision will be noticed hereafter. Upon this motion, the order was made striking “the defendants’ amended answer and all the defenses and counterclaims therein contained from the files.”
Afterwards, the cause was set down for trial and tried before the court. The plaintiffs introduced in evidence certified copies of Mrs. Rohlfing’s will, with the written consent of her husband of the same date attached, the order admitting the will to probate, the instrument consenting to and accepting the terms of the will, signed by the husband and filed in the county court on the date of the probate of the will, as well as the subsequent so-called “amended acceptance,” and also the writing whereby he surrendered to appellees all the right given him by the will to the use and occupation of the premises in Wyman’s addition, as his home, as above stated. Those proofs were introduced over
It is claimed that it was error to sustain the demurrer to the “further answer and cross-complaint” contained in the original answer, and a great part of the discussion in the briefs is devoted to matters supposed to be involved in that ruling. It seems, however, that we are precluded by the ruling of the supreme court from considering the decision on the demurrer. In Heaton v. Myers, 4 Colo. 59, 62, the court said:
“A defendant has no right to continue to'present the same defense by different pleas (Parks v. Holmes, 2 Ill. 554), nor may he repeatedly refer to the decision of the court, the legal sufficiency of the same defense, under the guise of an amended plea. The defendant having taken leave to amend his fourth plea, waived his right to assign error on the action of the court, in sustaining the • demurrer thereto.”
In Hurd v. Smith, 5 Colo. 233, it was again held, under the code, that the amendment of an alleged defense, after demurrer sustained thereto, waived the right to assign error upon the' ruling on the demurrer, and that an amended defense, which was
In Enright v. Midland S. & O. Co., 33 Colo. 341, 343, the eases above cited were approved, and the same rule was applied to the amendment of the complaint after demurrer sustained to the original. The court say:
“By taking leave to (file), and filing an amended complaint, the plaintiff waived any error committed by the court in sustaining the demurrer to the first amended complaint. Perrigo etc. Co. v. Grimes, 2 Colo. 651; Heaton v. Myers, 4 Colo. 59; Hurd, v. Smith; 5 Colo. 233; Rockwell v. Holcomb, 3 Colo. App. 1. For this reason, the alleged error of the court in sustaining the demurrer cannot be reviewed here. * * When an amended • complaint is, in effect, but a repetition of the one which it purports to amend, a motion to strike for that reason is well taken. Heaton v. Myers, supra.”
It is conceded that the third subdivision of the amended answer is simply a repetition of the second defense of the original answer to which the demurrer was sustained; consequently, it was not error to strike it out.
But the argument against the ruling on the demurrer to the second defense of the original answer includes one question — perhaps the controlling one on this branch of the case — which may be said to be fairly presented for consideration by the assignments based on exceptions to rulings on defendants’ objections to evidence introduced at the trial, and also on their exception to the final judgment, without reference to the allegations of the answer. This
As bearing in some way upon the right claimed for appellants to proceed for the satisfaction of their judgment against the undivided one-half of the real estate devised by Mrs. Rohlfing’s will, authorities have been cited bearing upon the nature and incidents of the husband’s estate by the curtesy, as it exists at common law; and the effort has been made to deduce some analogy between the common law estate by curtesy, and the husband’s right of inheritance with respect to the property owned by his wife at her death, existing by statute in this state. It is common knowledge that the husband’s estate by curtesy, like the right of dower of the wife, has had no existence or recognition in this state; and there is no reason to suppose that principles applicable to curtesy or dower,, as at common law, have influenced in any degree our legislation, as it ex
The contention is urged, however, that inasmuch as, by* our laws, a married woman could not, by her will, bequeath away from her husband more than one-half of the property, real and personal, belonging to her at her death, without the husband’s written consent, the husband was entitled by inheritance to one-half of the deceased wife’s estate, notwithstanding the dispositions of her will, and that the husband’s right of inheritance became available to his creditors-for the satisfaction of their demands, so that he could not, by consenting to the terms of the will, prevent his creditors from resorting, for
“Every person, aged twenty-one years, if a male, or eighteen years, if a female, being of sound mind and memory, shall have the power to devise all the estate, right, title and interest in possession, reversion or remainder, which he or she hath or at the time of his or her death shall have, of, in and to any lands, tenements, hereditaments, annuities or rents charged upon or issuing out of them, or goods, chattels and personal estate of every description whatever, by will-or testament; all persons of the ag*e of seventeen years, and of sound mind and mem*556 ory, shall have the power to .dispose of their personal estate, by will or testament; Provided, That no married man or woman shall by will devise or bequeath away, one from the other, more than one-half of his or her property, without the consent in writing of such other, executed after death of the testator or testatrix, but it shall be optional with such wife or husband, after the death of the other, to accept the condition of any such will or one-half of the whole estate, both real and personal.” R. S. 1908, § 7070.
It is reasonable to suppose that everyone familiar with the history of our legislation would be willing to admit that “every person” and “all persons” would have included married women,' even if they were not expressly mentioned in the proviso of the section last quoted; while the evident effect of that proviso was simply to give the surviving husband the same right with respect to his wife’s will, after her death, which the wife had at all times exercised by law concerning the will of the husband. See Mills’ Ann. Stat. § 3011. That is to say, the proviso made it optional with the surviving husband or wife to accept the provisions of the will of the deceased spouse, or one-half of the property, real and personal; belonging to the latter’s estate. In this case, the husband exercised that option by appearing at the probate of the will and filing his written consent to and acceptance of its provisions, and the will was thereupon duly and solemnly admitted to probate. By his election thus made, he was irrevocably bound, and the order admitting the will to probate is conclusive of the legality and validity of its contents, as against all persons. Rev. Stat.
Of the cases cited by counsel, the one which seems to be most applicable to the present controversy is the matter of Fleming’s Estate, 217 Pa. 610. That case involved the right of the husband’s creditors to compel him to elect to withhold his consent to the provisions of his deceased wife’s will, and to elect to take the interest in her estate given him by the intestate laws. The substance of the statute, upon which the husband’s right of election depended, was thus stated in the court’s opinion:
“The power of a married woman to dispose of her property by will is so restricted by the Act of May 4, 1855, P. L. 430, 2 Purd. (12th ed.) 2104, ‘that any surviving husband may, against her will, elect to take such share and interest in her real and personal estate, as she can, when surviving, elect to take against his will in his estates, otherwise to take only her real estate as tenant by the curtesy.’ ”
With respect to the claim made on behalf of the husband’s creditors, the court said:
“We think that the right of the husband to*558 elect to take against tlie provisions of Ms wife’s will is simply a personal privilege and is not an asset for tlie payment of Ms debts or a right which he can be compelled to exercise so as to' discharge his trust liabilities. Every sane person of lawful age in this commonwealth has a right to dispose of his property by will, and -the policy of the law is to encourage the exercise of that right. A married woman has now the same right as her husband to devise her property and that right should not be curtailed by the court compelling an unwilling husband to defeat it by an election to take against her will. His action in the premises is optional with him, but if he wishes to respect the last wishes of his wife as well as carry out the manifest policy of the law he refuses to interfere with the disposition which she makes of her property. * * If the court may compel the husband to take under the intestate laws and against his wife’s will, it may, with the same reason and by the exercise of the same authority, compel him to elect to take under the will. Tlie action of the court would then depend in each case upon the interest of the creditor or other party to whom the husband was liable, and would deprive him of his statutory right to make the election. If the husband’s interest in his wife’s estate under the intestate law was greater than his interest under the provisions of her will, the court at the instance of the creditor would compel the husband to take against the will. If, on the contrary, the interest of the husband under the will should be greater than his interest under the intestate laws, the court would at the instance of the creditor compel the husband to accept the provisions of the will.*559 Tlie election, therefore, would not be a personal privilege of the husband, which this court has declared it to be, but would be a right which the husband’s creditor could control as his interest should demand. This would not be an election by the husband but by the creditor. Such was certainly not the intention of the legislature in conferring upon the husband the right of election.”
This satisfactory reasoning may well be applied •to the conditions of our own statute giving the right of election to the husband to accept the provisions of his wife’s will or take his share of her estate, as in case of intestacy.
Counsel on either side have referred to the decision in Wolfe v. Mueller, 46 Colo. 339, as in someway affecting the merits of the present controversy, although that decision seems to afford little aid in the solution of the matter, unless by way of suggestion. In that case, the wife’s will was made in 1906, and, upon her subsequent death, was propounded for probate. ITer husband survived her, but died before the time fixed for the probate of the will, without having had any notice of the filing of the will. Subsequently, his children contested the probate of the wife’s will, “in so far as one-half of the estate of (the testatrix) was concerned.” The court held that the will had the effect to deprive the husband of more than one-half of-his wife’s estate, and that, inasmuch as he had not consented to its provisions, his heirs became entitled, upon his death, to the interest which he would have taken in the deceased wife’s estate, if the latter had died intestate, and that the county court erred in admitting the
“Under tlie terms of tlie statute, each spouse lias tlie option to take the property given by a will or one-lialf of the estate, and unless the written consent is given, he must be deemed to have elected to take the portion under the statute. In this case, no notice was given of the filing of the will, and the surviving husband never had the opportunity of electing. ’ ’
It will be observed that tlie conclusion of the supreme court was, not that tlie will was invalid, in whole or in part, but that the failure of the surviving husband to consent raised the conclusive presumption of his election to take under the law, and therefore that one-half of the wife’s estate must be regarded as intestate property. But in the instant case, the'surviving husband having consented to the will, it was admitted to probate finally, and without reservation or condition, as it should have been. To contend that such consent of the husband was fraudulent as to his creditors, because it defeated their hopes or expectations of receiving payment of their demands out of what he would otherwise have inherited under the statute, is simply to beg the whole question. If appellants had not the right to compel their debtor, either in the court of probate-or a court of equity, to elect to take against the will, and we think they had no such right, they had no standing, after his consent to the will, to question its dispositions, in law or equity. The probate of the will related back to the death of the testatrix, so as to prevent intestacy as to any part of her estate; and the title to the real property devised to appellees
Having already disposed of the matter of the motion to strike out the amended answer, so far as it related to the third subdivision thereof, there remains for consideration the ruling on that motion with respect to the first and second subdivisions of that pleading. Appellants’ counsel have not insisted in argument upon the assignment of error based on the striking out of the first defense of the amended answer. It is asserted in the brief for appellees, in effect, that the result of the order striking out the entire amended answer was to leave the case standing upon the complaint, the first defense of the original answer, and the replication thereto (the replication being of no effect), and that the cause was tried in the district court upon those pleadings and the evidence introduced by plaintiffs. Since appellants’ counsel, in their reply, do not controvert any part of their opponents’ statement in that particular, and no specific complaint has been made
It is earnestly contended, however, that the court erred in striking out the “further answer and cross-complaint”, constituting the second subdivision of the amended answer. The grounds of the motion to strike this portion of the amended answer are understood to be, (1) That there was no application or order for leave to file the sanie; (2) That the attempt was made thereby to set up “an entirely new defense and cross-complaint not found in the original answer”; (3) That the defendants were barred by their laches, as well as by the statute of limitations, from attacking the conveyance therein mentioned as fraudulent; (4) That the defendants had knowledge of the matters therein set forth at the time of filing the original answer, and there was no sufficient showing why the defense or counterclaim had not been pleaded in the first instance. We are not advised as to the court’s reasons for sustaining the motion to strike this defense or counterclaim, which the defendants undertook to plead for the first time in the amended answer. It is the settled rule of our courts that the matter of allowing amendments to the pleadings is ordinarily committed to the sound legal discretion of the trial court, which is only reviewable in a case of manifest abuse. Cartwright v. Ruffin, 43 Colo. 377; Sigel-Campion Co. v. Holly, 44 Colo. 580. We are of the opinion that the record does not show such manifest abuse of discretion in rejecting this amendment to
Affirmed.