right of election between the provisions of fined to formal relations, such as those alher husband's will and those provided by the luded to, but extends to every case where statute, and the right to make the same un- confidence exists on one hand and influence derstandingly. No misrepresentation, no con- on the other, “from whatever cause they cealment or suppression of the facts, no ap- may spring.” McCormick v. Malin, 5. Blackf. peal to family duty or obligation, will be al- 509, 522; Burden v. Burden, 141 Ind. 471, lowed by the court to thwart her free will, 476, 40 N. E. 1067; Culley v. Jones, 164 Ind. and prevent her from arriving at an intelli- 168, 175, 73 N. E. 94; Wheeler v. Smith, gent decision. As was said in the Garn Case: 9 How. 55, 82, 13 L. Ed. 44; Bispham's "Nothing less than an act intelligently done Pri. of Equity (7th Ed.) § 232; Kerr on will be sufficient. She should know, or if she Fraud and Mistake (2d Ed.) p. 166. The does not, she should be informed, of the rel- rule we have been considering does not deny ative values of the properties between which the power of the parties to contract, nor she is empowered to choose; in other words denounce all dealings between them as fraudher selection must be done with a full knowl- ulent, but in every such case it rests upon edge of the facts. The rule applies with spe- the superior, or party who has taken the cial force where the widow is called upon to benefit, to prove that the transaction was make her election shortly after her husband's

in every respect fair and equitable, and the death." The law recognizes the tender rela- free consent of him subject to the undue tion of husband and wife, and the usual lib- influence. See above authorities. Holt V. erality of husbands when they undertake by Agnew, 67 Ala. 360, 368. Brown on Parole, will to make provision for the future comfort Ev., § 38. and support of the wife. Responding to this These principles embrace the substance of sentiment, the statute now in force-section the complaint. It is set forth that the plain2666, Burns' Ann. St. 1901-is so constructed tiff is an old woman, ignorant of the law, that a widow will be held to have chosen un

of values, of business, and the degree of der the will unless within one year from the mental capacity necessary to make a will; date of probate she files with the clerk her that Elmira J. Whitesell is her daughter; solemn declaration of election to take under that Samuel C. Whitesell is Elmira's husthe law. In other words, if a widow is pas

band, a skillful lawyer, and a practicing atsive and takes no action at all with respect

torney in Wayne county; that by the proto her election, she will conclusively be pre- visions of the will the whole estate of Amos sumed to be content with the will. It is a

Strickler was bequeathed to the plaintiff; well-known fact that wives who have attain- that her husband requested her to accept ed to old age before the death of the hus

the provisions of the will, and she desired band, and who have given their lives to do

and intended to do so; that within a few mestic duties, and had little or no experi- days after the death of her husband and ence in business affairs, or in ascertaining the the probate of the will, to wit, within 12 current values of property, when suddenly days after the probate, Samuel C. and Elberea red and called upon to choose between mira Whitesell--to enable Elmira to inherit two portions of the family estate, are, in a large portion of her father's estate-remost instances, as helpless as minors, and

peatedly represented to the plaintiff that the feel wholly incapable of acting upon their will of Amos Strickler was invalid and void own judgment in matters of importance. In for unsoundness of mind of the testator, and such emergencies the natural and usual re

could be set aside, and further represented sort is to those possessed of her confidence, to her that the judge of the Wayne circuit and whom she believes to be competent and court, a special friend and associate of interested in her welfare. In situations like Samuel C. Whitesell, desired to see and talk this, and in all cases where the relations in with her concerning her deceased husband's life are such that influence is acquired by estate; that, relying upon said representaone and confidence reposed by another, so as tion, she went to the city of Richmond and to give rise to opportunity for imposition to the house of Elmira J. and Samuel C. or undue influence, such as arise between Whitesell, and after night on the day of her guardian and ward, parent and child, hus- arrival Samuel C. Whitesell brought said band and wife, principal and agent, and the judge to his house, and then Samuel C. and like, and where one of the parties, by rea- his wife and the judge commenced and son of his surroundings, is unable to treat discussed to the plaintiff the mental condiwith the other upon terms of equality, tion of her husband when he made his will, courts of equity will carefully scrutinize the and declared and asserted that he was indealings between them and compel restora- capable of making a will, and that his will tion in the absence of absolute fairness. "In was invalid, and that she had better take such cases," says Judge Story, "the one sub- her portion under the law; that she beject to undue influence has no free will, he lieved and relied upon what they claimed is in vinculis, and the constant rule in equity and asserted concerning her deceased husis that where a party is not a free agent, band, and was induced thereby to execute, ard is not equal to protect himself, the and on the following day, to wit, November court will protect him.” 1 Story's Equity, 18, 1899, did execute and file with the clerk, § 239. And this rule in equity is not con- her election to renounce the will and take

irresistible. If the will was invalid it could tion, and the statue of the limitations of one

under the law. It is difficult to conceive of 14 Ves. 273, 289, “that any doubts would be an influence more potential than that exer- entertained whether it is not competent to a cised against the plaintiff as here alleged- court of equity to take away from third Mr. Whitesell, the son-in-law, a practicing i persons the benefits which they have derived lawyer of the county, and reasonably sup- froin the fraud, imposition, or undue influ. posed to know, or at least she had the right ence of others." It is not by whom, but to presume he knew, whether, under the the manner of getting, which constitutes the law and facts stated, the will was valid; question. Ranken v. Patton, 65 Mo. 378, 415. his wife, her daughter, who should naturally It follows that we hold the complaint suffeel the most unselfish desire for the plain- ficient, and the demurrers thereto properly tiff's future comfort and support-and when

overruled. there is added the counsel and advice of the 3. The defendant Minos 0. Strickler made resident circuit judge, the influence brought default. The administrator filed a separate to bear against the widow seems practically answer to two paragraphs—former adjudica

. convey no rights, and all might be lost, and, year. Elmira J. and Samuel C. Whitesell in her lonely, inexperienced, uninformed, filed a joint and separate answer in two hesitating condition, the advice of the judge affirmative paragraphs. The second former alone would hardly fail to control her ac- adjudication. The third estoppel. Elmira tion for good or ill, and for one as readily J. answered separately in two paragraphs, as the other. Even if there was no personal former recovery and estoppel, respectively. acquaintance—which is not probable in this Russell Strickler, by his guardian, answered case it was reasonable for her to suppose, in two paragraphs, of former adjudication. from the honorable and responsible position The administrator's third paragraph and occupied, that the judge was a man of legal the joint answer of the Whitesells and Ruslearning, and of the highest integrity. She sell Strickler set up that the cause of action also had the right to regard him as the final had not accrued to the plaintiff within one arbiter of all questions relating to the settle- year from the probating of the will. To each ment of her husband's estate, and in deter- of these answers a demurrer was sustained. mining the validity of her husband's will in The Whitesells in their second, Russell any suit or contest that might be brought. Strickler in his first, and the administrator Also the right to assume, from the request in his second, paragraph, set up the same for the interview with her, that he felt an facts as res adjudicata. In substance they interest in her welfare, and would advise alleged that the plaintiff elected to take unher to that course which was best for her der the law, and the administrator thereupto take from the perplexing situation. It on filed his petition to sell the undivided is absurd to say that the widow was on equa! : two-thirds of the real estate to pay the debts terms with her advisers, or in position, as of the estate. The plaintiff was made a party against their contrary advice, to form an and filed an answer to the effect that she was independent and intelligent judgment. What the owner of an undivided one-third of the the judge said to her, and his advice to take lands and that there was unpaid her $340 of under the law, under the circumstances a!. her statutory allowance as widow, which leged, was calculated to secure acceptance she requested should be declared a lien on and obedience as promptly as would bis the property sold. Futher proceedings are judgment announced from the bench; and, alleged that resulted in an order and sale of resulting in detriment to the widow and in the undivided two-thirds of the home farm benefit to the appellants, no evidence that we to the defendant Elmira J. Whitesell for $3,610 can conceive of can be brought to relieve the and the balance of the land for $2,150 to transaction of fraud. But it should be borne a third person. The facts pleaded in the in mind that what is here said concerning answers last-above described, fall far short the judge is based upon the averments of ; of being sufficient as answers of former adthe complaint, and not upon facts proved, judication. The general rule is that the or even testified to. It is, too, but just to judgment in the former action settles all the eminent jurist referred to, to state that matters of controversy involved in the issues he is a judge of long experience, and of ir- between the parties to the action; that is, reproachable character, and has had no op- all matters litigated, or might have been portunity of meeting the charge. We there- litigated within the issues as they were made, fore indulge no adverse presumption in re- or tendered by the pleadings in the case, lation thereto, except such as the law re- but not matters that might have been litiquires us to do in testing the sufficiency of gated under issues formed by additional the complaint. Because the judge derived pleading. Finley v. Cathcart, 149 Ind. 470, no benefits from the plaintiff's election to 477, 48. X. E. 586, 63 Am. St. Rer. 292; Duntake under the law, makes no difference. The can v. Holcomb, 26 Ind. 378. “A party who transaction is not purged of its fraud by show- successfully invokes the doctrine of for ing it was brought about by a third person. mer adjudication must be one who tendered A delivery of the fruits to a stranger does to the other an issue to which the latter could not purify an evil deed. “I should regret," have demurred or pleaded." Jones v. Vert, says Lord Elden, in Huguenin V. Basely, 121 Ind. 140, 22 N. E. 832, 16 Am. St. Rep.

78 N.E.-—54

379. In a suit against A. and B. on a note, divided one-third of the home farm for the A. made default, and B. answered suretyshiy, expressed consideration that Elmira should which was decided against him. This judg. furnish her mother a home on the farm and ment did not operate as res adjudicata in a maintain her as long as she lived. Upon the subsequent action brought by B. against A. faith of said conveyance Elmira expended alleging the same facts. Harvey v. Osborn, $2,000 for repairs and betterments of the

, 55 Ind. 535. Stated more generally, where farm. The Whitesells jointly and Elmira two or more defendants make issues wit.b

severally rely upon these facts, and a vast the plaintiff, a judgment determining those amount of irrelevant, evidentiary matter, issues in favor of the defendants settles be. provable under the general denial, to estop tween them no fact that might have been the plaintiff from now claiming the fund in but was not, put in issue by a proper plead- the hands of the administrator. It should ing. Finley V. Cathcart, 149 Ind. 470, 478, | be borne in mind that the plaintiff is not 48 N. E. 586, 63 Am. St. Rep. 292. “An an

seeking to disturb a judgment, or any one's swer of former recovery must make it appear

title to the property conveyed by the adminthat there is an identity between the pres

istrator or herself, but only seeks to be ent and the previous action, and that the

restored to her rights in the proceeds of the parties are the same.” State V. Page, 63 property remaining in the possession of the Ind. 209, 212; Jones v. Vert, 121 Ind. 140,

administrator after the payment of debts, 22 N. E. 882, 16 Am. St. Rep. 379. In the

and expenses of administration. No rights former case in his petition to sell the undi

of innocent third persons contravene, and no vided two-thirds of the land to pay debts

part of the controversy can affect any one which petition was filed within three months

but the parties to the original fraud charged. after the probating of the will—the adminis

Refraining from analysis and extended artrator tendered to defendants, the widow and

gument, we deem it sufficient to say that heirs, as issue to show cause, if any they equity will not permit a wrongdoer, while re. had, why said land should not be sold to pay

taining the fruits of his wrong, to interpose the debts of the testator. The petition al

an act, intentionally and wrongfully induced leged that the plaintiff had elected to take

by him, as an estoppel against the injured under the law, and she had, and so she ad

party in an action for redress. One seeking mitted in her answer, she at that time resting equity must be able to show that he himself innocently under the alleged fraud perpe

has clean hands. The demurrers to the antrated upon her by her codefendants. At the

swers in estoppel were rightly sustained. time of filing her answer, the plaintiff had

We are also of the opinion that the limitathe absolute right to rescind her election,

tion pleaded by the adminstrator and the the statutory period having not expired, but,

other defendants as above noted, in bar of if she had chosen to seek its annulment on

the complaint, is inapplicable and insufficient. the ground of the alleged fraud, she would

As we have seen if a widow is content with have been required to implead her codefend

the provision made for her by the will, it is not ants. This she did not do. There was no

important, under section 2666, supra, that she impleading of any kind between her and her

make and file with the clerk her formal eleccodefendants. Her codefendants in the for

tion. Her silence and inaction will be held mer suit are the defendants in this, except the

evidence of an acceptance of the will, and, administrator, who is here a nominal party.

if continued for more than one year from the The subject-matter of this suit is entirely dif

probate, will be held as conclusive evidence of ferent from that of the former action and there are, perhaps, other reasons why, under

acceptance. Under the statute it is clear that the authorities, the answers under considera

if she desires to change or rescind her choice,

formed in favor of the will, to that of the tion are not good.

law, she must do so within the statutory The second paragraph of the answer of Russell Strickler counts upon a judgment of

period. Garn v. Garn, 135 Ind. 687, 35 N. E.

394. That is if the testamentary provision partition rendered in an action brought by the plaintiff, Elizabeth Strickler, Minos 0.

is to be annulled in favor of the statutory Strickler, and Elmira J. Whitesell, against provision, it must be done within one year the said Russell for the division of some prop

from the date of probate, but if she seeks to erty in Centerville, belonging to the estate of

rescind her election to take under the law and Amos Strickler, deceased, in the petition for

again place herself under the will after the which Elizabeth admitted she was the own

expiration of the year, for fraud, as in this er of one-third and the other parties the bal- case, she may bring her action within the ance. There was no interpleading, and the general statutory period. There is no statute facts set up are insufficient as a former re

of limitations governing this action other covery for the same reasons given al ve

than the six-year statute, and she is only reAfter Elmira J. Whitesell had purchased at quired, as in other cases in equity, to excuse

, the administrator's sale the undivided two- any apparent delay. With this in view she thirds of the home farm, she and the plain- alleges in the complaint that, at the time tiff, within the statutory period for election, Elmira J. and Samuel C. Whitesell and the entered into a contract whereby the plaintiff circuit judge induced her to take the statuagreed to, and did convey to Elmira, her un- tory portion in lieu of the testamentary pro

the of the fund the others were lawing over

.

vision, they requested and urged upon her because it did not appear that the Wayne not to tell any one of the meeting, or of what circuit judge was in any way disqualified, or had been said to her by the judge, or other that Smith was appointed special judge. party in his presence, concerning her hus- This defendant at that time made no objecband's want of testamentary capacity, or tion to the special judge sitting in the case, the invalidity of his will, as the judge, had or to the regularity of his appointment, and no right to advise her in relation to such all such objections will now be deemed waivmatters and believing that such representa- ed. “A practice that would permit a party tions were true and made in good faith, litigant to proceed for months before a de and relying on them, she was induced thereby facto judge, to make issues, and obtain rulto tell no one anything that was said to her ings upon legal questions involved in the concerning her husband's mental condition, controversy, and then, if not satisfied with and the invalidity of his will, or of the meet- some of his rulings, or not disposed to go ing, or of what occurred therein, until a into the trial, to be able in a moment to arfew weeks, the exact time she cannot state, rest the proceedings, and oust the jurisdicprior to the commencement of this suit, tion of the judge, cannot be tolerated.” Lilwhen, becoming suspicious that said represen- lie v. Trentman, 130 Ind. 16, 20, 29 N. E. 405. tations concerning her husband and his There was no error in the overruling of the will might not be true, she took legal advice, motion to remand. and for the first time learned and discover- The court gave the plaintiff judgment ed that said statements were false, and that for costs against the defendants, Elmira her husband did have testamentary capacity J. and Samuel C. Whitesell, to which they when he executed his will, and that said reserved an exception. Section 603 of the will was valid, and that said false statements Code provides that when there are several and advice were but a fraudulent scheme defendants the costs shall be apportioned to induce her to reject the provisions made according to the judgment rendered upon for her by her husband in his will. These the issue. The only issue tendered by the facts, we think, fully excuse the delay, and complaint was the alleged fraud of Elmira show that she brought the action within a J. and Samuel C. Whitesell. No fraud or reasonable time after the discovery of the wrongdoing was charged against any other fraud. The complaint makes it plain that defendant. The administrator was but a it was undue influence on the one side and nominal party. He was only the custodian undue confidence on the other that lead the plaintiff to surrender the whole for a part Minos O. Strickler made no defense. Rusof her husband's estate; and the same in- sell Strickler's defense rested wholly upon fluence that induced her to make the elec- the Whitesell's defense. The plaintiff was tion was well calculated to lull her into silent successful. In such a case the judgment resignation, and prevent inquiry and investi- of the court apportioning the cost will be gation.

presumed correct. Miller v. Dill, 149 Ind. There is nothing in the point that a cause 326, 49 N. E. 272. It is futher held under of action cannot be concealed before it ex- said section that if one of several defendants ists. It is well settled that acts constituting make a separate issue, which shall be defraudulent concealment may proceed, be con- clared against him, he is liable for the costs. current with, or subsequent to, the accruing Reynolds v. Bond, 83 Ind. 36, 43; Boyd v. of the cause of action. It is only important Jackson, 82 Ind. 525, 530. that such acts are of a character, and design- We perceive no reason why we should ed to operate after the cause of action shall disturb the judgment. We find no error in arise to prevent its discovery. Jackson the record. v. Jackson, 149 Ind. 238, 245, 47 N. E. 963. Judgment affirmed.

4. This cause originated in the Wayne circuit court. The regular presiding judge of which court is the same person referred to in

(38 Ind. A. 625) the complaint as having joined the Whitesells

COLLINS V. STATE. (No. 6,047.) in advising the plaintiff. The venue of the (Appellate Court of Indiana, Division No. 1. cause was changed from the Wayne circuit

Oct. 12, 1906.) court to the Henry circuit court and from INTOXICATING LIQUORS - SALOONS-REGULAthe latter to the Hancock circuit court. The TION – MUSICAL DEVICES — STATUTES — INproceedings in the Wayne circuit court, as

DICTMENT.

Burns' Ann. St. 1901, § 7283b, declares disclosed by the certified transcript to the

that no devices for amusements or music of Henry circuit court, were signed by “John any kind shall be permitted in any saloon. M. Smith, Special Judge." In the Hancock

Held not to prohibit the keeping of a musical circuit court, the defendant Russell Strickler,

device, so long as it was not operated or used

as a source of amusement, and hence an inafter appearing and demurring to the com- dictment charging merely the keeping of a musiplaint, excepting to the ruling, and filing his

cal box in defendant's saloon, etc., did not answers to the merits, then moved the court charge an offense. to strike the cause from that docket, and Appeal from Circuit Court, Elkhart Counremand the same to the Wayne circuit court, ty; Jas. S. Dodge, Judge.

cating liquors in less quantities than a quart is

Edward Collins was convicted of maintain- 165, 74 N. E. 985; Board v. Board, 128 Ind. ing a musical device in his saloon, and he ap- 295, 27 N. E. 133), and, if possible, give it peals. Reversed.

that construction which will carry out that L. W. Vail, for appellant. C. W. Miller,

intention and best promote the object of its a. C. Hadley, H. M. Dowling, and W. C.

enactment (Abbott v. Inman, 35 Ind. App. Geake, for the State.

262, 72 N. E. 284).

Reading this statute in the light of the MYERS, J. In the court below appellant history of conditions when enacted and the was charged by indictment, tried, convicted, mischief to be remedied, we must conclude and fined $10 for an alleged violation of sec- that the true purpose and intent of the Legistion 7283b, Burns' Ann, St. 1901. His motion lature by such enactment was to prohibit in to quash the indictment was overruled, and saloons not only devices for amusement, but this ruling is here assigned as error.

music of every kind or character, whether The gist of the charge, as presented by the produced by the voice or a musical invention. Indictment, is that appellant, a licensed liq- The alluring of people into rooms where liquor dealer, on October 10, 1905, in Elkhart

uors are sold by means of amusements or county, unlawfully then and there permitted music was evidently the intention of the Leg. a certain device for music, to wit, a Regina islature to stop, thereby discouraging the liqmusic box, to be and remain in the room in uor traffic and minimizing its evils by renwhich he was then engaged in selling intoxi- | dering uninviting the places where the same

is sold. The addition of a comma after the ,

word “amusements” and before the word “or” tion to quash, insists that there is no statute is all that is required to give the section of in this state making it unlawful to permit a the statute, now under consideration the efdevice for music to remain in a licensed sa

fect the Legislature clearly intended for St. loon. That part of section 7283b, supra, ap- This being true, it will be construed as plicable to the question now before us, pro- though the comma

the comma was inserted. United vides that "all persons holding a license States v. Lacher, 134 U. S. 624, 628, 10 Sup. authorizing the sale of spirituous

Ct. 625, 33 L. Ed. 1080; Hammock v. Loan & vinous, malt, or other intoxicating liquors in Trust Co., 105 U. S. 77, 84, 26 L. Ed. 1111; less quantities than a quart at a time, shall Allen v. Russell, 39 Ohio St. 336. We are provide for the sale of such liquors in a therefore of the opinion that the indictment room separate from any other business of

does not charge appellant with any violation any kind, and no devices for amusements

of the statute upon which it is predicated. or music of any kind or character,

Judgment reversed, with directions to sus. sball be permitted in such room." "A de tain the motion to quash. vice" is defined to be that which is devised or formed by design; a contrivance; an invention. Century and Webster. State V.

(193 Mass. 103) Blackstone, 115 Mo. 424, 427, 22 S. W. 370;

BAGGNESKI V. MILLS. Henderson v. State, 59 Ala. 89. The question is: Does the indictment charge appellant

(Supreme Judicial Court of Massachusetts.

Hampden. Oct. 17, 1906.) with any offense under this section of the

1. MASTER AND SERVANT-PERSONAL INJURIES statute? We think not. Admitting that a

-EVIDENCE-WEIGUT AND SUFFICIENCY. music box is a device or a mechanical in- In an action by a servant for personal vention and might be used to amuse and en- injuries, evidence examined, and held, that the tertain, yet the indictment is far from char

court could not say as a matter of law that it

did not warrant the findings in plaintiff's favor. ging that it was a device then and there per

2. SAME-NEGLIGENCE OF SUPERINTENDENT. mitted in the room for amusement, or that ap- Evidence that a person whose principal pellant then and there permitted music in duty was that of superintendence was negligent the room, produced by such device. . The

in his duty to plaintiff, an employé, in per

mitting the carriage of a mule which was being state argues that it was the intention of the

cleaned by plaintiff to be moved without ascere Legislature to exclude music from saloons, taining where plaintiff was, and, if necessary, and in order to do so it legislated against de- to give him notice in time to save himself, was vices in saloons for music; that is to say, by

sufficient to enable plaintiff to recover. doing away with the devices, they necessarily

[Ed. Note.-For cases in point, see vol. 34,

Cent. Dig. Master and Servant, $$ 978-980.] did away with the music. We are not per

3. SAME-ASSUMPTION OF RISK. suaded to place this construction on the lan

Assumption of risk by a workman does guage of this statute; for to do so would

not include risk from the negligent acts of a open the way to every saloon owner in the superintendent. state to install in his place of business one

[Ed. Note-For cases in point, see vol. 34,

Cent. Dig. Master and Servant, $$ 567-573.] of more vocalists to entertain his patrons and allure others into his place, in the hope of Exceptions from Superior Court, Hampden increasing his business. A familiar rule of County; Chas. A. Decourcy, Judge. interpretation of statutes is to ascertain the

Action by Frank Baggneski, by his next legislative Intention, and the purpose to be ac- friend, against Lyman Mills. Judgment for complished by the statute under consideration plaintiff, and defendant excepts. Excep(Western U. Tel. Co. V. Braxtan, 165 Ind. tions overruled,