185 Ind. 39 | Ind. | 1916
— The assignments of error and cross-errors in this case challenge the rulings of the trial court on separate demurrers to the second, third and fourth paragraphs of appellee’s answer to appellant’s complaint. The latter pleading alleges, in substance, that the pretended last will and testament of appellant’s grandmother, Caroline E. Carr, is invalid and of no force and effect for the reasons: (1) That its execution was obtained by undue influence; and (2) that the testatrix was at the time of unsound mind. The prayer is that the instrument be adjudged invalid and that its probate be set aside and vacated.
To this complaint appellee filed a general denial, which was subsequently withdrawn, and second, third and fourth paragraphs of affirmative answer. The second paragraph of answer alleges that the defendant (appellee) “is the son of the said Caroline E. Carr, deceased, and that the said plaintiff, Arthur Glenn Hight, is a grandson of the said Caroline E. Carr, deceased; that on the 31st day of March, 1908, the said Caroline E. Carr, then in life, made and executed her last will and testament; that by said will she gave and bequeathed five hundred dollars to the said plaintiff and five hundred dollars to Charles B. Hight; that the said Charles B. Hight was also a grandson of the said Caroline E. Carr, and died after the execution of said will and before the death of the said testatrix, Caroline E. Carr, leaving no lineal descendants; that by said will the said. Caroline E. Carr devised to one William H. Carr, who was her husband, a life estate in the property of which she died seized, and all the rest, residue and remainder of her estate, both real and personal, other than the legacies and devise above mentioned, she gave, bequeathed and devised by said will to the said
“Wherefore, said defendant says that said plaintiff has no right, title or interest in the estate of the said Caroline E. Carr, deceased, and no right to maintain this action.”
It was further held in the case of McClure v. Raben, supra: (1) That contracts of that character “are regarded by the law with disfavor, and are presumed to be founded in fraud or oppression, so much so that one who attempts the enforcement of such a contract must allege and prove that there was neither fraud nor oppression, before heiS'entitled to any consideration.” (2) That “it must be made to appear, * * * that the ancestor holding the estate should be informed of such contract, and should give his or her assent to the same.” (3) That the fact that the ancestor was of unsound mind at the time of the deed by an heir of his expectant interest in the estate does not affect the rule that such a deed or contract of assignment is void unless made with the assent of the ancestor. Under the rules thus announced it is clear that the second paragraph of answer is insufficient, at least for its failure to show consent on the part of the ancestor, and the demurrer thereto should have been sustained.
The third paragraph of answer contains, in substance, many of the allegations of the second, although not expressly relying on the written contract, and appellee now claims that, under the facts presented, appellant is estopped to contest or question the validity of the will, under the rule that a beneficiary who, with knowledge of the circumstances under which the will was made and with full knowledge of the facts existing at the time of the receipt of the legacy, accepts and retains such legacy is estopped to contest such will. Crawfordsville Trust Co. v. Ramsey (1912), 178 Ind. 258, 98 N. E. 177; Starkey v. Starkey (1905), 166 Ind.
Judgment reversed, with instructions to sustain the demurrer to the second paragraph of appellee’s answer, to overrule the demurrer to the. fourth paragraph of such answer, and for further proceedings not inconsistent herewith.
Note. — Reported in 112 N. E. 881. Sale or assignment of expectancy by prospective heir, validity, 25 L. R. A. (N. S.) 436, 438; 56 Am. St. 339; 4 Cyc 15. See under (3) 16 Cyc 785; 40 Cye 1245.