76 Ind. 236 | Ind. | 1881
Thomas Smith, by his last will, gave his wife “one full half” of his property, consisting of money, land and personal securities, and appointed her and John O. Cravens his executors. The will provides as follows :
, The debts shall be first paid; then the executors shall make a full footing up of the property and its values, taking the values named in the will for the real estate and tangible property, and the “face value” for the choses in action, “unless known to be legally and totally worthless and insolvent.” A legacy to Mary Eoberts shall be paid before any division of the property, and a legacy to Maggie Cravens shall be paid after such division. The wife, after the said valuation, as part of her half, shall take the real estate and tangible property at $4,000, and “shall go on to select in kind to the full value of one-half of the estate,” and then Maggie Cravens shall select her bequest, in kind, out of the half not taken by the wife, which half the testator calls “my part of the estate.” In addition to the above bequests, not exceeding $1,000 is set apart to the wife for the purpose of a monument. All the remainder of the estate “in kind” is given to William Harrison Smith, the nephew of the testator, charged with legacies to the amount of about $500.
No inventory or appraisement of the property was made ; but about a month after the testator’s death the executors and the residuary legatee and others made a footing-up and valuation of the property, as directed by the will. They first took out $500 for the Eoberts legacy; they then divided the remainder into two equal parts; they gave the widow-one part, including the real estate and the tangible property, at $4,000, and personal securities at their face value, it being agreed that none of such securities were “legally aiid' totally worthless and insolventthen, out of the other part, they took first enough to pay the Cravens legacy,, and then enough to pay the-costs of the executorship, and $1,000 for a monument, and then they gave the remainder to the
At the time of this settlement nothing was said about the widow’s claim for $500, under section 43 of the decedents’ act. This settlement was made on May 9th, 1876. In August, 1877, the appellees, executors of the will, commenced this suit against the appellant, the residuary legatee. The complaint stated that said Thomas Smith had died testate, and that distribution had been made of his estate according to his will, and that, among other distributions, $18,597.90 had been paid to the appellant, and that, after such distribution ,. there was nothing left of the estate ; that since the distribution the testator’s widow had filed her claim against the estate for $500, which had been allowed, but had not been paid for want of assets ; that they had demanded from •defendant said $500, which he had refused to pay. Wherefore they prayed judgment for $500, for the use of said widow.
The appellant demurred to the complaint, for want of facts sufficient to constitute a cause of action. The demurrer was overruled by the court, and the appellant excepted. The appellant filed an answer in three paragraphs, of which the first was the general denial. The appellees replied in denial of the second and third paragraphs of the answer, and the issues were tried by a jury, who returned a verdict for the appellees for $500. The appellants moved for a new trial. This motion was overruled by the court, and the appellant excepted. Judgment was rendered upon the verdict, and this appeal was taken. Errors are assigned as follows:
1st. The court erred in overruling appellant’s demurrer to appellees’ complaint.
2d. The court erred Ju^overruling appellant’s motion for a new trial.
The question is, does such a settlement of the claims under the will preclude the widow from afterwards claiming
“1. The court erred in admitting parol evidence of the-kind and amount of the personal estate, moneys, notes and-stocks of the testator.”
It is claimed that an inventory should have been made, and that an inventory is the only competent evidence of the’ testator’s property ; but where, as in this case, all the parties interested agree upon a settlement and distribution under a will, without an inventory, and it becomes necessary, afterward, to show the amount of the testator’s property,, it may be done by parol.
This reason, not being discussed in the appellant’s brief, is regarded as waived.
“3d. The court erred in permitting the executor, John O. Cravens, to testify in said cause.”
The statute, 2 E. S. 1876, p. 133, sec. 2, provides, that “where an executor * * is a party in a case, where a judgment may be rendered either for or against the estate represented by such executor, * * neither party shall be allowed to testify as a witness, unless required by the opposite party, or by the court trying the cause.” Where an objection to such testimony is overruled by the court, that is a sufficient indication of the intention of the court that the witness shall testify.
“4th. The court erred in refusing to give the jury each and all of the instructions requested by defendant.”
These instructions are six in number. In his brief, the appellant says of them “These charges are all founded on the theory that if the distribution of the estate was made by agreement, and voluntarily and without mistake, the appellees could not recover.” That was an incorrect theory. No-waiver of a widow’s right to $500, under the decedents’ act, can arise upon a mere acceptance of her legacy under a will, or upon her mere agreement as to the proper execution of the will.
“5th. The court erred in giving to the jury, of its own-motion, each of the instructions numbered from 1 to 7, inclusively.”
The appellant, in his brief, says: “These instructions are-founded upon the theory that by no agreement can the-widow waive the $500 allowed her by law.” But this is a. mistake. They are not founded upon such a theory, but on the fact that no waiver was proved. The court told the jury,.
6th. The verdict of the jury is not sustained by sufficient evidence.
7th. The verdict of the jury is contrary to law.
'As to the last two reasons, w;e are satisfied that the verdict was in accordance with the evidence, and was not contrary to law.
8th. The damages are excessive.
Under this head, the appellant urges that the widow, in this case, is not entitled to one-half of the estate and $500 besides ; but, where the will gives her one-half of the estate, this court has decided that the law gives her $500 in addition thereto. Nelson v. Wilson and Whiteman v. Swem, supra.
The motion for a new trial was properly overruled, and the judgment of the court below ought to be affirmed.
Per Curiam. — It is therefore ordered by the court, upon the foregoing opinion, that the judgment of the court be, and the same is hereby, in all things affirmed, at the costs of the appellant. ¡