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110 Ind. 31

Brown v. Critchell

Indiana Supreme Court

Decided June 16, 1886

Indiana Supreme Court · decided 1886-06-16

<p>Pleading.—Demurrer.—Legal Capacity to Sue.—Disabilities.—The want of legal capacity to sue, allowed as a cause of demurrer by the second clause of section 339, K. S. 1881, has reference to plaintiffs under legal disabilities,- and not to cases in which the facts alleged show that the plaintiff has no right to sue in a particular action.</p> <p>Same.—Complaint.—Might of Action.—To make a complaint good upon demurrer for the alleged want of sufficient facts, it must state a good cause of action in favor of the plaintiff, or, where there are several plaintiffs, in favor of all of them.</p> <p>"Will.— Construction.—Law of Case.—Amendment of Pleadings.—Where, upon appeal to the Supreme Court, a construction is given to a will, it is the law of the case to the end of the controversy, and the questions determined will not he again considered on a second appeal because of immaterial amendments to the complaint.</p> <p>Descents.—Partition and Distribution.—Law Governing.—Both in the par- • tition and distribution of the estate of a person who dies intestate, the law in force at the time of the death of such person will prevail.</p> <p>Same.—Will.—The property of a deceased person descends, or is otherwise disposed of, according to the law in force at the time of his death, except in so far as he may have made a different provision by his will.</p> <p>Same.—Chose in Action.—Successor ship.—Change by Legislation.—The right of successorship to a chose in action is as much a subject-matter of legislation as is the manner in which any other property of a person dying intestate shall be transmitted.</p> <p>Same.—Time of Taking Effect of Wills and Statutes of Descents.—A will speaks from the day of the death of the testator, and statutes of descents and distribution from the time of their enactment.</p> <p>Same.—Legacy.—Might qf Action.-—-Survivorship.—Husband and Wife.—Statutes of 1843.—A. executed a will in 1840, bequeathing all his property to his wife subject to a charge of $5,000, in favor of IT., a niece, payment of which was to be made either during the lifetime of his wife or at her death, in her discretion. A. died in 1842, leaving the will so executed in full force. In 1844, H. intermarried with M. and died in 1850, leaving children and her husband surviving. The wife of the testator died testate in 1878, without having paid or made any provision for the payment of the bequest to H. M. died intestate in 1879, leaving a widow and children by a second marriage.</p> <p>■Held, that under the statutes of 1848, in force when H. died, her husband succeeded to the claim she held to the legacy, and that no right of action survived to her children.</p>

Key passage — most relied on by later courts

“"... all the property of a deceased person descends, or is otherwise disposed of, according to the law in force at the time of his death, ..."”

quoted by 1 later decision, including Scott v. SCOTT, ADMRX.

Relies on Critchell v. Brown · Coldron v. Rhode

Good law ✅— No negative treatment on recordhow we know

Decided 1886-06-16

How this case has been cited

Cited by 32 later decisions — most recently March 1971 · most notably 17 Cal. 2d 13 - Klopstock v. Superior Court (1941), McIntosh v. Zaring (1898)

32 state decisions

1101886189019001910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1On Petition for a Rehearing.

Niblaok, J.

¶2As stated in the opinion promulgated at the former hearing, the statute of 1838, regulating descents, distribution and dower, and providing that the personal as well as the real estate of persons dying intestate should descend to their children, and to the descendants of such children, was in force when the will of Elias Ayers was executed, as well as at the time of the death of the said Ayers, and a rehearing is prayed upon the ground that this statute became in legal effect a part of the will, and that, in consequence, the alleged rights of the appellees under the will ought to be construed with reference to and in the light of such statute, instead of under the statutes of 1843, which were in force when Catharine S. Moody died.

¶3But it is a well settled rule, both in the partition and distribution of the estates of persons dying intestate, that the-law in force at the time of the death of the intestate person *41must prevail. Lynch v. Provisional Government of Paraguay, L. R., 2 P. & D. 268; Coldron v. Rhode, 7 Ind. 151.

¶4It is also a well accepted legal proposition, that all the property of a deceased person descends, or is otherwise disposed . of, according to the law in force at the time of his death, except in so far as he may have made a different provision by his will.

¶5As will be seen by a reference to the opinion announced wdien the case was first before this court (72 Ind. 539), the will of Elias Ayers did not annex any condition to, or place any restriction upon, the bequest made to Catharine S. Moody. The amount bequeathed to her was to become her absolute property, and constituted a chose in action which would have inured to her benefit if she had survived Mrs. Lapsley. The right of successorship to such chose in action, in the event that Mrs. Moody did not live to enforce it, therefore, became as much a subject-matter of ordinary legislation as is the manner in which any other property of a person dying intestate-shall be transmitted.

¶6The power of the Legislature in this respect is well illustrated by the successive enlargements of the interests which widows take, and have taken, in the estates of their deceased husbands within the past thirty-five years.

¶7A will speaks from the day of the death of the testator,, and statutes of descents and distribution from the time of their enactment. Consequently, the bequest to Mrs. Moody was transmitted according to the law in force at the time of' her death. There was nothing in the nature of such bequest: which took it out of the general rule in that respect.

¶8The petition for a rehearing is overruled.

¶9Howk, J., was absent.

¶10Filed April 27, 1887.

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