158 Ind. 438 | Ind. | 1902
Edward and Celeste Murphy were husband and wife, old and childless. Edward died December 3, 1900, testate, leaving real estate of the value of $3,000, and a personal estate of the value of $31,000. The will provided that Celeste should have, “in consideration of her surrendering all her legal claims” to her husband’s estate, the household effects-, and $2,000 per annum during her life. Excepting a few trifling legacies, the remainder of the estate was bequeathed to certain benevolences in New Harmony. Appellants, as executors, entered upon the execution of the will. On the day of Edward’s death, Celeste signed a paper in these words: “The foregoing will of my late husband Dr. Edward Murphy, dated July 26, 1899, having
' I. The legislature, as long ago as 1843, empowered a widow to circumvent an attempt of her husband to deprive her of her statutory rights in his real estate by will, but at the same time put the widow upon her election between her rights under the will and under the law, except in cases where it clearly appeared that both were intended by the testator. §101, p. 431, R. S. 1843. This statute, as modified in 1852 to conform to the substitution of a fee for a
II. Assuming that the paper signed by Mrs. Murphy was intended by her as an election to accept the will of her husband in lieu of her statutory rights in both personal and real estate, for want of an acknowledgment before an officer it must nevertheless be held invalid, and of no legal effect. The right of election is purely statutory, and can only be enjoyed by a compliance with the statute conferring it. To secure definite action and overcome confusion and controversy, and remove opportunity for imposition upon defenseless widows by unscrupulous heirs, the General Assembly, by the act of 1885, as they had the power to do, provided that the right of election should depend upon its timely and solemn execution. The particular manner of execution prescribed is a condition upon which the right itself rests. The writing, the signing, and the acknowledgment before an officer, are equally essential steps, and the absence of either will make the instrument null and defeat the election. Fosher v. Guilliams, 120 Ind. 172; Draper v. Morris, 137 Ind. 169; Dudley v. Pigg, 149 Ind. 363.
It is contended'that §2648 Bums 1901 does not require acknowledgment before an officer. But it clearly does. The words are that the election shall be made “in the same manner as widows are now required by law to elect.” This language has the same force and effect as if the words of the act of 1885 appeared in its stead. It must, therefore, be held that no election was made by Mrs. Murphy.
III. We concede that the right of election is personal to the widow, and can be exercised by no other, but we cannot grant that her personal representative has no right to question the validity of such election if she endeavors to make
IV. This suit was not prematurely brought. The action is not for distribution, but to have the alleged election of the widow judicially declared void, and expunged from the will record.
Judgment affirmed.