145 Ind. 659 | Ind. | 1896
— Appellees instituted this action in the lower court to set aside a deed, executed by Elizabeth Wilson to the appellant, John W. Wilson, whereby she sought to convey a certain interest in fee-simple in the real estate in question. The appellees were successful in this action, and over a motion by appel
The facts alleged in the complaint summarized are as follows: Appellant, John W. Wilson, is the son of Abijah and Elizabeth Wilson, and appellees are their children, some of them being their grandchildren. Abijah Wilson died testate at Marshall county, Indiana, in October, 1880, the owner in fee of the land described in the complaint, leaving surviving him his widow, Elizabeth Wilson. By the last will of said Abijah, which was duly probated on the 16th day of December, 1880, he willed and gave to his said wife, Elizabeth, all his property, both real and personal, the realty being that mentioned in the complaint, with all the proceeds thereof, to hold for and during her natural life, subject to the payment of his debts. After the death of his wife the will provided that all of said property remaining should be sold to the best advantage and the proceeds divided among his children, naming them, subject to certain advancements. After the probate of the will, it is alleged: “that said widow never made any express election in writing by which she signified her intention and purpose to take under said will or under the law, but with a full and complete knowledge of said will, and with a full and complete understanding of its provisions as the same affected her interests, and of her right to accept the provisions of said will and to take thereunder, or to reject the provisions of said will in her favor and take under the law; she, agreeable to the terms of said will, continued in the possession of all of said real estate and personal property from the time of her said husband’s death down to the 26th day of September, 1890. She paid all the taxes against said land, and kept up the improvements thereon, and gave out to her said chil- ' dren and persons in the neighborhood that she held
The evident theory of the complaint, as outlined by its alleged facts, is that the widow, Mrs. Wilson had by implication elected to take and accept the life-estate in the lands bequeathed to her by her husband, and was thereafter estopped from conveying any interest in fee under the law, as she had pretended to do by her deed to the appellant An answer and cross-complaint were filed by the appellant, and upon request a special finding of facts was made by the court, with a statement of its conclusions of law thereon. There are several errors assigned, and thereunder the appellants complain and say that the complaint is not sufficient, and contend that the finding of the court is not supported by the evidence, and that the conclusions of law are not warranted by the special finding. As to a part of the material facts alleged in the complaint there is no controversy between the parties. Appellant’s principal contentions are that the facts as alleged in the complaint, and as they appear from the evidence in the record, do not establish the ultimate issuable fact that Mrs. Wilson had, prior to the execution of the deed to appellant, elected to accept the life-estate in the lands devised to her by the will.
We have carefully read and considered the evidence,
“Know all men, etc., I, Abijah Wilson, of the county of Marshall, State of Indiana, make this my last will and testament: First, I bequeath to my beloved wife, Elizabeth Wilson, all my property, both real and personal, together with all the proceeds, during her natural life time, after paying all my just indebtedness. * * * * At the death of my wife, Elizabeth, I desire my property, both real and personal, disposed of to the best advantage (or so much thereof as may be left) and the proceeds thereof divided among my heirs, as hereinafter described,” etc. Here follow directions as to an equal distribution among his children, naming them, subject to a deduction of certain notes which he held against some of his said children. There is evidence showing that Mrs. Wilson was present when the will was executed by her husband — passing in and out of the room in which it. was being prepared, engaged in looking for and bringing certain notes that were mentioned and identified in the will.
At the time of the execution it appears that the will was also discussed in her presence. After the death
Section 2505, E. S. 1881, in force at the time of the probate of the will, provides: “If lands be devised to a woman, etc., by the will of her late husband, in lien of her right to lands of her husband, she shall make her election whether she will take the lands so devised or the provisions so made, or whether she will retain the right to one-third of the land of her late
Prior to the amendment of this section by the act of •1885 — see Burns’ R. S. 1894, section 2666 — if the widow of the deceased testator for whom testamentary provision had been made, remained silent she was presumed to hold under the law, and not under the will. Now, however, since the change in the law by the legislature in 1885, she is not required to elect as formerly to take under the will, but in effect she is required within the time mentioned and in the manner provided to renounce the provisions therein made for her benefit, or her rights will be controlled by the will. Burden v. Burden, 141 Ind. 471, and cases there cited.
The act amending this section, by its express terms limits the time in wdiich the election is to be made to one year after the probate of the will, and is only applicable to wills probated after it went into effect. Under section 2505, supra, as it existed at the time of the probate of Abijah Wilson’s will, the widow might expressly elect to take under her husband’s will, or her election to do so might be by implication, inferred from her acts and conduct. An eminent author states
Again it is said: “An election may be also implied— that is, inferred — from the conduct of the party, his acts, omissions, modes of dealing with either property, acceptance of rents and profits, and the like. Courts of equity have never laid down any rule determining for all cases what conduct shall amount to an implied election, but each case must depend in a great measure upon its own circumstances. * * * * A recital in a deed may amount to an election or be evidence of an election. * * * Where a widow is required to elect between a testamentary provision in her favor and her dower, an unequivocal act of dealing with the property given by thewill as her own, or the exercise of any unmistakable ownership over it, if done with knowledge of her right to elect, and not through a clear mistake as to the condition and value of the property, will be deemed an election by her to take under the will and to reject her dower.” Id., section 515.
Where an election is once made by the party bound to elect, either expressly or inferred from his conduct, if binds, not only himself, but also those parties who claim under him, his representatives and heirs. Id. Section 516; Am. and Eng. Ency. of Law, supra.
A person who has an election between several in
Applying the doctrine as stated and laid down by the authorities to which we have just referred, what must be a reasonable conclusion from the acts of Elizabeth Wilson — subsequent to the probate of the will in controversy. It is evident, we think, that she knew of the testamentary provisions made for her by her husband. She was present at the time of its execution, and heard the will discussed by the testator and draftsman. Shortly after the death of her husband she seems to have recognized her right to use and enjoy the entire estate by leasing the farm to her son, George Wilson, from whom she received and accepted, from year .to year, one-third of all the products thereof. We have her repeated declarations that the land was her own as long as she lived, and that she was to reside thereon during life, and at her death it was to be divided among the children of her deceased husband. That this was the will of the latter, and that his will was her will. For a period of nearly ten years after the probate she asserted an ownership to the whole farm and a right to the use and control thereof, kept up improvements and paid the taxes, and then, after terminating by a notice to quit the relation
In Barkley v. Mahon, 95 Ind. 101, this court held that a widow to whom a life estate in land had been devised by her late husband, manifested her intention to take under the will by claiming such life estate as exempt from execution.
Appellees, who, as we have seen, are the children and heirs of the testator, and to whom he had devised the estate after the termination of their mother’s life tenancy, seem to have relied upon her acts and conduct as indicating an election upon her part to take under the will, at least it does not appear that they ever, after the probate of the will and prior to her death, disputed her right to have, use and enjoy, as she did, the lands in question.
Having elected to take under the will prior to the execution of the deed to the appellant, as we are con
The complaint was sufficient and the conclusions of law authorized by the finding, and the finding is supported by the evidence. After insisting that in executing the deed to appellant Mrs. Wilson was exercising her right, under the law, to convey to him, his counsel seem to espouse a new and different theory, and contend that under the will she took a life estate in the lands with power of alienation in fee of all or a part thereof, consequently, they mildly contend that the deed served as a valid conveyance in fee to the appellant. We need not decide whether the clause in the will reading “or so much thereof as may be left” was intended to empower the widow to sell and convey the land in fee, as it does not appear that she' attempted to exercise any right to convey under the will. She distinctly declared, and stated in the deed, that the interest which she was conveying to appellant was that which she took and inherited under the law as the widow of Abijah Wilson.
Appellant complains of the action of the court in excluding certain declarations of Mrs. Wilson, made prior to the execution of the deed in the absence of appellees and while she was in possession of the land to the effect that she had never seen the will nor heard it read, and that all she knew about it was what her son George Wilson had told her. It is sufficient to say that under the issues in this case these were clearly incompetent.
Finding no error in the record, the judgment is affirmed.