107 Ind. 198 | Ind. | 1886
Lead Opinion
Petition by Hannah Langley, widow of .John Langley, deceased, against Sarah Mayhew, executrix
The petition charged that the petitioner was entitled to 4500 out of the estate of the decedent as his widow, in addition to certain bequests to her by the will, which fact the executrix had fraudulently concealed from her, and that the estate was finally settled without her knowledge, and without paying her said sum of $500.
Issues were ■ formed by general denials, and upon certain matters specially pleaded in defence.
At the request of the parties the circuit court made a special finding of the facts, which may be summarized as follows: That the decedent duly executed his last will on the 29th day of April, 1881, as charged in the petition, and thereafter, on the 19th day of July, 1881, died leaving said will, ■which was duly admitted to probate on the 21st day of the same month, in full force; that the first item of such will was in these words: “After the payment of all my just ■ debts (of which I have very few), expenses of last sickness, and funeral expenses, out of my personal property, I will, bequeath and devise to my wife, Hannah Langley, the sum of fifteen hundred dollars, and if I shall not leave sufficient personal property to pay the same, it shall be a lien upon .such real estate as is not specifically devised herein, and secondly, on such as is so devised: Provided, however, That whatever sum or amount shall be paid by me to the said Hannah during my lifetime shall be deducted from said sum of $1,500, and the sum of $487.61, notes of Robert Brooks, .and secured by his mortgage, if accepted by her, is to be deducted therefrom. In addition to said sum of $1,500, I will ■and bequeath to said Hannah Langley all my household furniture and the use for and during her natural life of the house situate on the rear part of lot numbered twenty-four -(24), Chute & Prince’s addition to the city of Fort Wayne,
“$487.61. Received of John Langley four hundred and' eighty-seven dollars by notes of Robert Brooks, secured by mortgage, the same to apply upon and be credited and charged against a bequest of fifteen hundred dollars this day made to me by John Langley in his will, and which bequest I agree to accept in lieu of all rights in his estate as his widow. Fort Wayne, April 29th, 1881.
“ Hannah Langley.”
That, at the time of the execution of the will, the petitioner was present, and that it was arranged between her and the testator that she should execute the foregoing receipt and that the will and the receipt should be placed together in an envelope and left with the attorney, who drew them both,, until after the testator’s death; that, after the testator died,, the executrix delivered the notes to the petitioner, and, with the latter’s knowledge and consent-, retained the receipt as a voucher to be used in the settlement of the estate; that, at
Upon the facts as thus found, the circuit court arrived at the following conclusions of law:
First. That the petitioner wag, not entitled to recover from the decedent’s estate the sum of $500, or any other sum, in ■addition to what she had received under the will.
Second. That no cause had been shown for setting aside ■■and re-opening the final settlement of the estate.
Exceptions were reserved to the conclusions of law at which The court thus arrived, and in support of the exceptions so •reserved it is argued that the necessary inference from cases previously decided by this court is that a surviving wife can not be' deprived of the $500 out of her deceased husband’s •estate, to which she is entitled under section 2269, R. S. 1881, as additional to any provision which her husband may make for her by his will, and the cases of Loring v. Craft, 16 Ind. 110, Dunham v. Tappan, 31 Ind. 173, Bratney v. Curry, 33 Ind. 399, Leib v. Wilson, 51 Ind. 550, Schneider v. Piessner, 54 Ind. 524, Nelson v. Wilson, 61 Ind. 255, Whiteman v. Swem, 71 Ind. 530, and Smith v. Smith, 76 Ind. 236, are cited as justifying that inference.
Some of the cases cited, and possibly others, have gone to an extreme limit in holding that widows were respectively entitled to receive a specific sum of money, under the law, in -addition to provisions made for them by their husbands in their wills, and, in consequence, we feel it incumbent upon this court hereafter to limit, rather than extend, the doctrine •of those cases. It was held, in the well considered case of Morrison v. Bowman, 29 Cal. 337, that if, by the general scope of the will, it appeared that the husband intended to (dispose of all the property under his control, half of which,
In the case of Schneider v. Piessner, supra, it was plainly intimated that a widow may release or relinquish her claim, under the law, to all interest in her husband’s personal estate, and we know of no .rule, whether of the statute or of the common law, which restrains her in the slightest degree from doing so. It is clearly inferable from sections 2491 and 2505, R. S. 1881, as well as from the text-writers, that the doctrine of election extends as much to an interest in the personal, as to an estate in the real, property of a decedent. 2 Redf. Wills, 369; 2 Jarman Wills, 1; Adams Equity, 92, et seq.; Wright v. Jones, 105 Ind. 17.
The claim of a widow to the statutory provision, made for Per by section 2269 of the present code, may, therefore, be ;as readily relinquished by her election to take under an inconsistent provision of her late husband’s will as any other right or interest, in his estate.
As has been shown by the item of the will herein above -set out, the provision made for the petitioner was declared to be in lieu of any and all other interests which she might have in the estate, whether real or personal, of the testator. This declaration became a condition in her acceptance of the pro
The fact that this cause was entered upon the common law-docket of the court below, and that all the entries and orders made concerning it were spread upon the common law order-book, is also ui’ged as an objection to the proceedings below.. It is true that the circuit courts of the State have a separate and distinct probate juxúsdiction, and that this cause belonged to, and was within that jurisdiction. Noble v. MeGinnis, 55 Ind. 528; Douthitt v. Smith, 69 Ind. 463. But its being-docketed and otherwise treated as aix ordinaxy civil action was an irregularity merely, and at íxxost a hax’inless error.
Cross error is assigned upon the alleged insufficiency-of the petitioxx, considei’cd as a complaint to set aside and reopen the final settlement. But the view' we have taken of the case, in other respects, rendex’s it unnecessary that we shall consider any question ax’ising upon the pleadings.
Th-e judgment is affix’med, with costs.
Rehearing
On Petition for a Rehearing.
Counsel for the appellant claim that we have, for reasons entix’ely unsatisfactory as well as wholly indefensible, declined to follow tlxe conclusions logically resulting from our previous holdings, that widows are respectively entitled to an absolute sum out of the personal estate-
Conceding, nevertheless, all that is asserted in behalf of Lhe merits of the appellant’s claim as an original demand against the estate, the facts, as found at the trial, disclosed no such illegality, fraud or mistake in the final settlement as was necessary to obtain a re-opening of such final settlement, -and for that reason, if for no other, the appellant failed to
The petition for a rehearing is overruled.
Filed June 26, 1886.