181 Ind. 584 | Ind. | 1914
This was an action by appellant to contest a will, under §3154 Burns 1908, §2596 R. S. 1881. The complaint alleges that a pretended will of Thomas Toyne, Sr., was admitted to probate in October, 1910; that decedent left as his sole heir at law, his widow, Rebecca Toyne, who afterwards, in the year 1910, died intestate, leaving appellant as her sole heir; that by the terms of the pretended will, all of decedent’s estate, both real and personal, except a life estate therein given to the widow, was devised and bequeathed to appellee Thomas Toyne; that the pretended will was and is invalid because the decedent, at the time of the execution thereof was of unsound mind, and because the execution of the instrument was obtained by fraud, etc.
To each of said second and third paragraphs of answer, appellant filed a demurrer which was overruled, and to which ruling appellant excepted. A reply was filed to the two paragraphs of answer, to which the court sustained appellees’ demurrer, and appellant declining to plead further, judgment was rendered for appellees. The only error here assigned is the action of the court in overruling appellant’s demurrer to the second and third paragraphs of answer.
Note. — Reported in 105 N. E. 42. As to the election widow has between dower and other provision, see 92 Am. St. 695. As to the effect on third person of widow’s election to take against will, see 14 L. R. A. 293. As to the effect of spouse’s election to take against will on rest of will, see 27 L. R. A. (N. S.) 602. See, also, under (1) 40 Cyc. 1988; (2) 2 Cyc. 982.