Appellants brought this action to contest the will of Hannah Moore1 on the grounds that the testatrix was of unsоund mind and that the alleged will was unduly executed. Appellees pleaded two affirmative defenses': (1) Thаt each appellant was given by the will certаin .real estate in severalty, and immediately after the will was probated entered under the'will into possession of the realty so devised, and has ever sinсe remained in possession, en-' joying the rents and profits; and (2) that each appellant was given by the will certain real estate in severalty, and immediately after the will was probated, with full knowledge of the mental condition of the testatrix at the time the will was executed and' of the manner in which and the cir
The second answer shows a deliberate election to take under .the will; and this election precludes appellants from assailing the will’s vаlidity. Lee v. Templeton,
Whether or not the first answer is good is made a moоt question by the state of the record. The judgment agаinst appellants for their ■ refusal to reply to thе second answer is unquestionably correct. Their refusal to- reply confirmed their admission of the truth of thе áverments in the second answer. They assert that the first is bad on account of the omission of the allegаtion of -knowledge, which is the only allegation of the second answer that is not in the first. It is idle to decide whether or not appellants’ acceptance of the devises, without knowledge of the testаtrix’s mental unsoundness and the manner in which and the circumstances under which the will was executed, would defeat their action, when the record shows a judgment agаinst them on their confession that they had such knowledgе. If they had denied the answers and if there had been а general verdict for appellees, the judgmеnt on such verdict would have to be reversed if the first answer was bad, because the record would not shоw that the jury had found the additional allegation of knowledge in the second answer to be true. But if there had been a. special verdict in which all the avеrments of the second answer were found to be true, the judgment would not be reversed even if the first answer wаs bad.
■ Judgment affirmed.