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right of election between the provisions of her husband's will and those provided by the statute, and the right to make the same understandingly. No misrepresentation, no concealment or suppression of the facts, no appeal to family duty or obligation, will be allowed by the court to thwart her free will, and prevent her from arriving at an intelligent decision. As was said in the Garn Case: "Nothing less than an act intelligently done will be sufficient. She should know, or if she does not, she should be informed, of the relative values of the properties between which she is empowered to choose; in other words her selection must be done with a full knowledge of the facts. The rule applies with special force where the widow is called upon to make her election shortly after her husband's death." The law recognizes the tender relation of husband and wife, and the usual liberality of husbands when they undertake by will to make provision for the future comfort and support of the wife. Responding to this sentiment, the statute now in force-section 2666, Burns' Ann. St. 1901-is so constructed that a widow will be held to have chosen under the will unless within one year from the date of probate she files with the clerk her solemn declaration of election to take under the law. In other words, if a widow is passive and takes no action at all with respect to her election, she will conclusively be presumed to be content with the will. It is a well-known fact that wives who have attained to old age before the death of the husband, and who have given their lives to domestic duties, and had little or no experience in business affairs, or in ascertaining the current values of property, when suddenly bereaved and called upon to choose between two portions of the family estate, are, in most instances, as helpless as minors, and feel wholly incapable of acting upon their own judgment in matters of importance. In such emergencies the natural and usual resort is to those possessed of her confidence, and whom she believes to be competent and interested in her welfare. In situations like this, and in all cases where the relations in life are such that influence is acquired by one and confidence reposed by another, so as to give rise to opportunity for imposition or undue influence, such as arise between guardian and ward, parent and child, husband and wife, principal and agent, and the like, and where one of the parties, by reason of his surroundings, is unable to treat with the other upon terms of equality, courts of equity will carefully scrutinize the dealings between them and compel restoration in the absence of absolute fairness. "In such cases," says Judge Story, "the one subject to undue influence has no free will, he is in vinculis, and the constant rule in equity is that where a party is not a free agent, and is not equal to protect himself, the court will protect him." 1 Story's Equity, § 239. And this rule in equity is not con

fined to formal relations, such as those alluded to, but extends to every case where confidence exists on one hand and influence on the other, "from whatever cause they may spring." McCormick v. Malin, 5. Blackf. 509, 522; Burden v. Burden, 141 Ind. 471, 476, 40 N. E. 1067; Culley v. Jones, 164 Ind. 168, 175, 73 N. E. 94; Wheeler v. Smith, 9 How. 55, 82, 13 L. Ed. 44; Bispham's Pri. of Equity (7th Ed.) § 232; Kerr on Fraud and Mistake (2d Ed.) p. 166. The rule we have been considering does not deny the power of the parties to contract, nor denounce all dealings between them as fraudulent, but in every such case it rests upon the superior, or party who has taken the benefit, to prove that the transaction was in every respect fair and equitable, and the free consent of him subject to the undue influence. See above authorities. Holt v. Agnew, 67 Ala. 360, 368. Brown on Parole, Ev., § 38.

These principles embrace the substance of the complaint. It is set forth that the plaintiff is an old woman, ignorant of the law, of values, of business, and the degree of mental capacity necessary to make a will; that Elmira J. Whitesell is her daughter; that Samuel C. Whitesell is Elmira's husband, a skillful lawyer, and a practicing attorney in Wayne county; that by the provisions of the will the whole estate of Amos Strickler was bequeathed to the plaintiff; that her husband requested her to accept the provisions of the will, and she desired and intended to do so; that within a few days after the death of her husband and the probate of the will, to wit, within 12 days after the probate, Samuel C. and Elmira Whitesell--to enable Elmira to inherit a large portion of her father's estate-repeatedly represented to the plaintiff that the will of Amos Strickler was invalid and void for unsoundness of mind of the testator, and could be set aside, and further represented to her that the judge of the Wayne circuit court, a special friend and associate of Samuel C. Whitesell, desired to see and talk with her concerning her deceased husband's estate; that, relying upon said representation, she went to the city of Richmond and to the house of Elmira J. and Samuel C. Whitesell, and after night on the day of her arrival Samuel C. Whitesell brought said judge to his house, and then Samuel C. and his wife and the judge commenced and discussed to the plaintiff the mental condition of her husband when he made his will, and declared and asserted that he was incapable of making a will, and that his will was invalid, and that she had better take her portion under the law; that she believed and relied upon what they claimed and asserted concerning her deceased husband, and was induced thereby to execute, and on the following day, to wit, November 18, 1899, did execute and file with the clerk, her election to renounce the will and take


under the law. It is difficult to conceive of an influence more potential than that exercised against the plaintiff as here allegedMr. Whitesell, the son-in-law, a practicing lawyer of the county, and reasonably supposed to know, or at least she had the right to presume he knew, whether, under the law and facts stated, the will was valid; his wife, her daughter, who should naturally feel the most unselfish desire for the plaintiff's future comfort and support-and when there is added the counsel and advice of the resident circuit judge, the influence brought to bear against the widow seems practically irresistible. If the will was invalid it could convey no rights, and all might be lost, and, in her lonely, inexperienced, uninformed, hesitating condition, the advice of the judge alone would hardly fail to control her action for good or ill, and for one as readily as the other. Even if there was no personal acquaintance-which is not probable in this case it was reasonable for her to suppose, from the honorable and responsible position occupied, that the judge was a man of legal learning, and of the highest integrity. also had the right to regard him as the final arbiter of all questions relating to the settlement of her husband's estate, and in determining the validity of her husband's will in any suit or contest that might be brought. Also the right to assume, from the request for the interview with her, that he felt an interest in her welfare, and would advise her to that course which was best for her to take from the perplexing situation. It is absurd to say that the widow was on equa! terms with her advisers, or in position, as against their contrary advice, to form an independent and intelligent judgment. What the judge said to her, and his advice to take under the law, under the circumstances a!leged, was calculated to secure acceptance and obedience as promptly as would his judgment announced from the bench; and, resulting in detriment to the widow and in benefit to the appellants, no evidence that we can conceive of can be brought to relieve the transaction of fraud. But it should be borne in mind that what is here said concerning the judge is based upon the averments of the complaint, and not upon facts proved, or even testified to. It is, too, but just to the eminent jurist referred to, to state that he is a judge of long experience, and of irreproachable character, and has had no opportunity of meeting the charge. We therefore indulge no adverse presumption in relation thereto, except such as the law requires us to do in testing the sufficiency of the complaint. Because the judge derived no benefits from the plaintiff's election to take under the law, makes no difference. The transaction is not purged of its fraud by showing it was brought about by a third person. 'A delivery of the fruits to a stranger does not purify an evil deed. "I should regret," says Lord Elden, in Huguenin v. Basely, 78 N.E.-54

14 Ves. 273, 289, "that any doubts would be entertained whether it is not competent to a court of equity to take away from third persons the benefits which they have derived from the fraud, imposition, or undue influ ence of others." It is not by whom, but the manner of getting, which constitutes the question. Ranken v. Patton, 65 Mo. 378, 415. It follows that we hold the complaint sufficient, and the demurrers thereto properly overruled.

3. The defendant Minos O. Strickler made default. The administrator filed a separate answer to two paragraphs-former adjudication, and the statue of the limitations of one year. Elmira J. and Samuel C. Whitesell filed a joint and separate answer in two affirmative paragraphs. The second former adjudication. The third estoppel. Elmira J. answered separately in two paragraphs, former recovery and estoppel, respectively. Russell Strickler, by his guardian, answered in two paragraphs, of former adjudication. The administrator's third paragraph and the joint answer of the Whitesells and Russell Strickler set up that the cause of action had not accrued to the plaintiff within one year from the probating of the will. To each of these answers a demurrer was sustained. The Whitesells in their second, Russell Strickler in his first, and the administrator in his second, paragraph, set up the same facts as res adjudicata. In substance they alleged that the plaintiff elected to take under the law, and the administrator thereupon filed his petition to sell the undivided two-thirds of the real estate to pay the debts of the estate. The plaintiff was made a party and filed an answer to the effect that she was the owner of an undivided one-third of the lands and that there was unpaid her $340 of her statutory allowance as widow, which she requested should be declared a lien on the property sold. Futher proceedings are alleged that resulted in an order and sale of the undivided two-thirds of the home farm to the defendant Elmira J. Whitesell for $3,610 and the balance of the land for $2,150 to a third person. The facts pleaded in the answers last-above described, fall far short of being sufficient as answers of former adjudication. The general rule is that the judgment in the former action settles all matters of controversy involved in the issues between the parties to the action; that is, all matters litigated, or might have been litigated within the issues as they were made, or tendered by the pleadings in the case, but not matters that might have been litigated under issues formed by additional pleading. Finley v. Cathcart, 149 Ind. 470, 477. 48 N. E. 586, 63 Am. St. Rep. 292; Duncan v. Holcomb, 26 Ind. 378. "A party who successfully invokes the doctrine of for mer adjudication must be one who tendered to the other an issue to which the latter could have demurred or pleaded." Jones v. Vert, 121 Ind. 140, 22 N. E. 882, 16 Am. St. Rep.

379. In a suit against A. and B. on a note, A. made default, and B. answered suretyship, which was decided against him. This judg ment did not operate as res adjudicata in a subsequent action brought by B. against A. alleging the same facts. Harvey v. Osborn, 55 Ind. 535. Stated more generally, where two or more defendants make issues with the plaintiff, a judgment determining those issues in favor of the defendants settles between them no fact that might have been. but was not, put in issue by a proper pleading. Finley v. Cathcart, 149 Ind. 470, 478, 48 N. E. 586, 63 Am. St. Rep. 292. "An answer of former recovery must make it appear that there is an identity between the present and the previous action, and that the parties are the same." State v. Page, 63 Ind. 209, 212; Jones v. Vert, 121 Ind. 140, 22 N. E. 882, 16 Am. St. Rep. 379. In the former case in his petition to sell the undivided two-thirds of the land to pay debtswhich petition was filed within three months after the probating of the will-the administrator tendered to defendants, the widow and heirs, as issue to show cause, if any they had, why said land should not be sold to pay the debts of the testator. The petition alleged that the plaintiff had elected to take under the law, and she had, and so she ad

mitted in her answer, she at that time resting innocently under the alleged fraud perpetrated upon her by her codefendants. At the time of filing her answer, the plaintiff had the absolute right to rescind her election, the statutory period having not expired, but, if she had chosen to seek its annulment on the ground of the alleged fraud, she would have been required to implead her codefendants. This she did not do. There was no impleading of any kind between her and her codefendants. Her codefendants in the former suit are the defendants in this, except the administrator, who is here a nominal party. The subject-matter of this suit is entirely dif

ferent from that of the former action and there are, perhaps, other reasons why, under the authorities, the answers under consideration are not good.

The second paragraph of the answer of Russell Strickler counts upon a judgment of partition rendered in an action brought by the plaintiff, Elizabeth Strickler, Minos O. Strickler, and Elmira J. Whitesell, against the said Russell for the division of some property in Centerville, belonging to the estate of Amos Strickler, deceased, in the petition for which Elizabeth admitted she was the owner of one-third and the other parties the balance. There was no interpleading, and the facts set up are insufficient as a former recovery for the same reasons given above. After Elmira J. Whitesell had purchased at the administrator's sale the undivided twothirds of the home farm, she and the plaintiff, within the statutory period for election, entered into a contract whereby the plaintiff agreed to, and did convey to Elmira, her un

divided one-third of the home farm for the expressed consideration that Elmira should furnish her mother a home on the farm and maintain her as long as she lived. Upon the faith of said conveyance Elmira expended $2,000 for repairs and betterments of the farm. The Whitesells jointly and Elmira severally rely upon these facts, and a vast amount of irrelevant, evidentiary matter, provable under the general denial, to estop the plaintiff from now claiming the fund in the hands of the administrator. It should be borne in mind that the plaintiff is not seeking to disturb a judgment, or any one's title to the property conveyed by the administrator or herself, but only seeks to be restored to her rights in the proceeds of the property remaining in the possession of the administrator after the payment of debts, and expenses of administration. No rights of innocent third persons contravene, and no part of the controversy can affect any one but the parties to the original fraud charged. Refraining from analysis and extended argument, we deem it sufficient to say that equity will not permit a wrongdoer, while retaining the fruits of his wrong, to interpose an act, intentionally and wrongfully induced by him, as an estoppel against the injured party in an action for redress. One seeking equity must be able to show that he himself

has clean hands. The demurrers to the answers in estoppel were rightly sustained.

We are also of the opinion that the limitation pleaded by the adminstrator and the other defendants as above noted, in bar of the complaint, is inapplicable and insufficient. As we have seen if a widow is content with the provision made for her by the will, it is not important, under section 2666, supra, that she make and file with the clerk her formal election. Her silence and inaction will be held evidence of an acceptance of the will, and, if continued for more than one year from the

probate, will be held as conclusive evidence of acceptance. Under the statute it is clear that if she desires to change or rescind her choice, formed in favor of the will, to that of the law, she must do so within the statutory period. Garn v. Garn, 135 Ind. 687, 35 N. E. 394. That is if the testamentary provision is to be annulled in favor of the statutory provision, it must be done within one year from the date of probate, but if she seeks to rescind her election to take under the law and again place herself under the will after the expiration of the year, for fraud, as in this case, she may bring her action within the general statutory period. There is no statute of limitations governing this action other than the six-year statute, and she is only required, as in other cases in equity, to excuse any apparent delay. With this in view she alleges in the complaint that, at the time Elmira J. and Samuel C. Whitesell and the circuit judge induced her to take the statutory portion in lieu of the testamentary pro

vision, they requested and urged upon her not to tell any one of the meeting, or of what had been said to her by the judge, or other party in his presence, concerning her husband's want of testamentary capacity, or the invalidity of his will, as the judge, had no right to advise her in relation to such matters and believing that such representations were true and made in good faith, | and relying on them, she was induced thereby to tell no one anything that was said to her concerning her husband's mental condition, and the invalidity of his will, or of the meeting, or of what occurred therein, until a few weeks, the exact time she cannot state, prior to the commencement of this suit, when, becoming suspicious that said representations concerning her husband and his will might not be true, she took legal advice, and for the first time learned and discovered that said statements were false, and that her husband did have testamentary capacity when he executed his will, and that said will was valid, and that said false statements and advice were but a fraudulent scheme to induce her to reject the provisions made for her by her husband in his will. These facts, we think, fully excuse the delay, and show that she brought the action within a reasonable time after the discovery of the fraud. The complaint makes it plain that it was undue influence on the one side and undue confidence on the other that lead the plaintiff to surrender the whole for a part of her husband's estate; and the same influence that induced her to make the election was well calculated to lull her into silent resignation, and prevent inquiry and investigation.

There is nothing in the point that a cause of action cannot be concealed before it exists. It is well settled that acts constituting fraudulent concealment may proceed, be concurrent with, or subsequent to, the accruing of the cause of action. It is only important that such acts are of a character, and designed to operate after the cause of action shall arise to prevent its discovery. Jackson v. Jackson, 149 Ind. 238, 245, 47 N. E. 963.

4. This cause originated in the Wayne circuit court. The regular presiding judge of which court is the same person referred to in the complaint as having joined the Whitesells in advising the plaintiff. The venue of the cause was changed from the Wayne circuit court to the Henry circuit court and from the latter to the Hancock circuit court. The proceedings in the Wayne circuit court, as disclosed by the certified transcript to the Henry circuit court, were signed by "John M. Smith, Special Judge." In the Hancock circuit court, the defendant Russell Strickler, after appearing and demurring to the complaint, excepting to the ruling, and filing his answers to the merits, then moved the court to strike the cause from that docket, and remand the same to the Wayne circuit court,

because it did not appear that the Wayne circuit judge was in any way disqualified, or that Smith was appointed special judge. This defendant at that time made no objection to the special judge sitting in the case, or to the regularity of his appointment, and all such objections will now be deemed waiv"A practice that would permit a party litigant to proceed for months before a de facto judge, to make issues, and obtain rulings upon legal questions involved in the controversy, and then, if not satisfied with some of his rulings, or not disposed to go into the trial, to be able in a moment to arrest the proceedings, and oust the jurisdiction of the judge, cannot be tolerated." Lillie v. Trentman, 130 Ind. 16, 20, 29 N. E. 405. There was no error in the overruling of the motion to remand.

The court gave the plaintiff judgment for costs against the defendants, Elmira J. and Samuel C. Whitesell, to which they reserved an exception. Section 603 of the Code provides that when there are several defendants the costs shall be apportioned according to the judgment rendered upon the issue. The only issue tendered by the complaint was the alleged fraud of Elmira J. and Samuel C. Whitesell. No fraud or wrongdoing was charged against any other defendant. The administrator was but a nominal party. He was only the custodian of the fund the others were lawing over. Minos O. Strickler made no defense. Russell Strickler's defense rested wholly upon the Whitesell's defense. The plaintiff was successful. In such a case the judgment of the court apportioning the cost will be presumed correct. Miller v. Dill, 149 Ind. 326, 49 N. E. 272. It is futher held under said section that if one of several defendants make a separate issue, which shall be declared against him, he is liable for the costs. Reynolds v. Bond, 83 Ind. 36, 43; Boyd v. Jackson, 82 Ind. 525, 530.

We perceive no reason why we should disturb the judgment. We find no error in the record.

Judgment affirmed.

(38 Ind. A. 625)

COLLINS v. STATE. (No. 6,047.) (Appellate Court of Indiana, Division No. 1. Oct. 12, 1906.)


Burns' Ann. St. 1901, § 7283b, declares that no devices for amusements or music of any kind shall be permitted in any saloon. Held not to prohibit the keeping of a musical device, so long as it was not operated or used as a source of amusement, and hence an indictment charging merely the keeping of a musical box in defendant's saloon, etc., did not charge an offense.

Appeal from Circuit Court, Elkhart County; Jas. S. Dodge, Judge.

Edward Collins was convicted of maintaining a musical device in his saloon, and he appeals. Reversed.

L. W. Vail, for appellant. C. W. Miller, C. C. Hadley, H. M. Dowling, and W. C. Geake, for the State.

MYERS, J. In the court below appellant was charged by indictment, tried, convicted, and fined $10 for an alleged violation of section 7283b, Burns' Ann. St. 1901. His motion to quash the indictment was overruled, and this ruling is here assigned as error.

The gist of the charge, as presented by the indictment, is that appellant, a licensed liquor dealer, on October 10, 1905, in Elkhart county, unlawfully then and there permitted a certain device for music, to wit, a Regina music box, to be and remain in the room in which he was then engaged in selling intoxicating liquors in less quantities than a quart at a time. Appellant, in support of his motion to quash, insists that there is no statute in this state making it unlawful to permit a device for music to remain in a licensed saloon. That part of section 7283b, supra, applicable to the question now before us, provides that "all persons holding a license

authorizing the sale of spirituous vinous, malt, or other intoxicating liquors in less quantities than a quart at a time, shall provide for the sale of such liquors in a room separate from any other business of any kind, and no devices for amusements or music of any kind or character,


shall be permitted in such room." "A device" is defined to be that which is devised or formed by design; a contrivance; an invention. Century and Webster. State Blackstone, 115 Mo. 424, 427, 22 S. W. 370; Henderson v. State, 59 Ala. 89. The question is: Does the indictment charge appellant with any offense under this section of the statute? We think not. Admitting that a music box is a device or a mechanical invention and might be used to amuse and entertain, yet the indictment is far from charging that it was a device then and there permitted in the room for amusement, or that appellant then and there permitted music in the room, produced by such device. The state argues that it was the intention of the Legislature to exclude music from saloons, and in order to do so it legislated against devices in saloons for music; that is to say, by doing away with the devices, they necessarily did away with the music. We are not persuaded to place this construction on the language of this statute; for to do so would open the way to every saloon owner in the state to install in his place of business one of more vocalists to entertain his patrons and allure others into his place, in the hope of increasing his business. A familiar rule of interpretation of statutes is to ascertain the legislative intention, and the purpose to be accomplished by the statute under consideration (Western U. Tel. Co. v. Braxtan, 165 Ind.

165, 74 N. E. 985; Board v. Board, 128 Ind. 295, 27 N. E. 133), and, if possible, give it that construction which will carry out that intention and best promote the object of its enactment (Abbott v. Inman, 35 Ind. App. 262, 72 N. E, 284).

Reading this statute in the light of the history of conditions when enacted and the mischief to be remedied, we must conclude that the true purpose and intent of the Legislature by such enactment was to prohibit in saloons not only devices for amusement, but music of every kind or character, whether produced by the voice or a musical invention. The alluring of people into rooms where liquors are sold by means of amusements or music was evidently the intention of the Legislature to stop, thereby discouraging the liquor traffic and minimizing its evils by rendering uninviting the places where the same is sold. The addition of a comma after the word "amusements" and before the word "or" is all that is required to give the section of the statute, now under consideration the effect the Legislature clearly intended for it. This being true, it will be construed as though the comma was inserted. United States v. Lacher, 134 U. S. 624, 628, 10 Sup. Ct. 625, 33 L. Ed. 1080; Hammock v. Loan & Trust Co., 105 U. S. 77, 84, 26 L. Ed. 1111; Allen v. Russell, 39 Ohio St. 336. We are therefore of the opinion that the indictment does not charge appellant with any violation of the statute upon which it is predicated. Judgment reversed, with directions to sustain the motion to quash.

(193 Mass. 103)


(Supreme Judicial Court of Massachusetts. Hampden. Oct. 17, 1906.)


In an action by a servant for personal injuries, evidence examined, and held, that the court could not say as a matter of law that it did not warrant the findings in plaintiff's favor. 2. SAME-NEGLIGENCE OF SUPERINTENDENT.

Evidence that a person whose principal duty was that of superintendence was negligent in his duty to plaintiff, an employé, in permitting the carriage of a mule which was being cleaned by plaintiff to be moved without ascertaining where plaintiff was, and, if necessary, to give him notice in time to save himself, was sufficient to enable plaintiff to recover.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 978-980.] 3. SAME-ASSUMPTION OF RISK.

Assumption of risk by a workman does not include risk from the negligent acts of a superintendent.

[Ed. Note-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 567–573.]

Exceptions from Superior Court, Hampden County; Chas. A. Decourcy, Judge.

Action by Frank Baggneski, by his next friend, against Lyman Mills. Judgment for plaintiff, and defendant excepts. Excep tions overruled

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