Bower et al. v. Bowen.

DAILEY, J.-This action was commenced, in the Clark Circuit Court, for the partition of certain real estate in said county, described in the schedule annexed to the complaint and properly referred to.

From the first paragraph of the complaint, and the evidence introduced thereunder, it appears that Hiram Bowen died testate on the 2d day of November, 1889, the owner, in fee, of the lands so set forth; that the testator was the appellee's husband, and the appellants are his and the appellee's children and grandchildren; that within one year after the death of the devisor, being on the 1st day of March, 1890, the appellee elected to take one-third of the lands of the decedent, by filing her written election in the manner prescribed by law in force at the time.

This paragraph of the complaint alleges that she is the owner in fee of the undivided one-third part thereof as tenant in common with the defendants, and sets out the names and interests of her cotenants. There is also a prayer for partition and that her share be set off to her in severalty.

The second, third, and fourth paragraphs of the complaint sought to have a trust declared in favor of the appellee, which she alleges was created by the purchase of land with her separate funds, by her husband, without, her knowledge or consent.

Upon the trial, these paragraphs were all dismissed, the appellee abandoning the trust set out therein, and the cause was disposed of upon the first paragraph only. Partition was ordered by the court, and commissioners were duly appointed to make partition. They divided the real estate of the decedent, including in their report that described in the schedule annexed to the first paragraph of the complaint, and the land set out in the sec

Bower et al. v. Bowen.

ond, third and fourth paragraphs thereof, of which the testator was the apparent owner at the time of his death. Upon the filing of such report, and on the motion of the plaintiff below, the court ordered that the pleadings and record be corrected so as to conform to the report of the commissioners, and so as to include the real estate described in the last three paragraphs of the complaint.

Exceptions were filed by the appellants, and overruled by the court. They then filed their motion for a new trial, which was overruled, and the case is here upon the alleged errors, of overruling the demurrers to the first paragraph of the complaint, of overruling the exceptions to the report of the commissioners who made such partition, and upon the overruling of the motion for a new trial.

The first ground assumed by the appellants in support of their objection to the complaint is, that the election of the widow was not made in the manner prescribed by the statutes in force at the time.

The Acts of 1885, p. 239, Burns' R. S. 1894, section 2666, contain the law controlling this class of cases. This act provides that the widow shall make her election whether she will take the land so provided, or the provision so made, or whether she will retain the right to one-third of the land of her said husband. And it is required that such election shall be in writing, signed by such widow, and acknowledged before some officer authorized to take acknowledgments of deeds, and shall be made within one year after said will has been admitted to probate in this State, and shall be recorded in the office of the clerk of the circuit court in which the will is probated and recorded by such clerk in the record of wills, reference being made from such record to the book and page in which the will is recorded, and from the VOL. 139-3

Bower et al. v. Bowen.

record of the will to the book and page on which such election is recorded.

In the case under consideration, it is shown that the appellee did everything required of her by law.

It is averred in her complaint, that "After the death of said testator, and within one year thereafter, to wit: on the first day of March, 1891, the plaintiff elected to take one-third of the land of her deceased husband by written election, signed by her and acknowledged before some officer authorized to take acknowledgment of deeds, which election was filed and recorded in the office of the clerk of the Clark Circuit Court, within one year after the said will was admitted to probate."

The second objection urged to the complaint is that the election, or a copy thereof, should have been made a part of the paragraph. Such is not the case, however. It is only when the action is founded on the writing that it is required to be made an exhibit. 1 Works' Pr., etc., section 420. The present action was not founded upon the election but upon the ownership, and the election was but an evidence of it, or item of proof.

The last objection made to the sufficiency of the complaint is that it does not appear, from its averments, that the defendants, Corydon C. Bower, George Huffstetter, Peter Wilson and Davis Vaught have any interest in the subject-matter of the litigation, or. why they were made parties. The learned counsel are mistaken. It alleges "that George Huffstetter is the husband of Stellatus Huffstetter; that Corydon C. Bower is the husband of Hannah. Bower; that Peter Wilson is the husband of Maria Wilson, and that Davis Vaught is the husband of Mollie Vaught,' all of whom were daughters of the testator. They are simply made defendants as prescribed and permitted by section 5129, R. S. 1881; Burns' R. S. 1894, section 6974, which provides that all suits relative to such lands shall be

Bower et al. v. Bowen.

prosecuted by or against the husband and wife jointly. Besides the appellants Corydon C. Bower, George Huffstetter, Peter Wilson, and Davis Vaught having joined in the joint assignment of errors, and not having filed any separate assignment as to the sustaining of the demurrer to the complaint, they are not in a position to complain of an error of the court as to them individually. Quick v. Brenner, 101 Ind. 230; Elliott's App. Proced., section 318.

The next question considered by the appellants is the overruling of the exceptions to the report of the commissioners who divided the land. It appears to us that there is no question of this kind before the court, for the reason that the affidavits in support of and against the exceptions are not made a part of the record. This court could not intelligently decide whether the action of the trial court is proper or not, unless it has before it the evidence upon which the decision was based. Affidavits must be made part of the record, either by bills of exceptions or the order of the court. Cochran v. Dodd, 16 Ind. 476; Horton v. Wilson, 25 Ind. 316; Norton v. State, 106 Ind. 163.

The next error complained of by the appellants is the overruling of the motion for a new trial. Under this assignment they argue that "the court erred in refusing the defendants a trial of this cause, on the report of the commissioners herein, except by affidavits;" also "in refusing the defendants to have witnesses to testify orally as to the report of the commissioners." It does not seem that the appellants are in a situation to complain of any such errors as are assigned in these reasons.

First. Because it is not shown in the record that the appellants in any way offered to support their exceptions. by proof other than by affidavits.

Second. It does not appear from the record who the

Bower et al. v. Bowen.

witnesses are that the appellants offered in support of their exceptions, what they would testify to and whether they were competent or not. The appellants were apparently satisfied with submitting the question upon affidavits. Kern v. Bridwell, 119 Ind. 226; Gipe v. Cummins, 116 Ind. 511.

The fourth and fifth reasons for a new trial are predicated on the sixth statutory ground. The investigation of these reasons necessarily involves the weighing of the evidence. This court can not ignore the well settled rule that where competent evidence appears in the record which, if true, tends to sustain the finding on every material point, unless it is of such a character as that to believe it would involve an absurd or unreasonable conclusion, no matter how much the evidence is contradicted, it will support the finding nevertheless. Isler v. Bland, 117 Ind. 457; Continental Life Ins. Co. v. Yung, 113 Ind. 159; Cowger v. Land, 112 Ind. 263.

In the case at bar, the evidence, in brief, shows that at the time the decedent executed his will, the appellee, then past eighty years of age, was present, and made no objection to it. Suppose she did sit quietly by and hear the instrument read, she had no right to object. The decedent had the right to dispose of his property in any way he thought best, and of this she could not complain while he was living. There is no merit in this objection.

It appears, from the evidence, that after the death of the testator, she, for a time, dwelt in ignorance as to her legal rights, and was not advised by those to whom she would be expected to look for counsel. Some fault is found with the appellee because she remained in possession of the dwelling house and surrounding land. The law authorized her to do this. The widow's quarantine