Watson, Sheriff v. Roberts , 108 Ind. App. 388 ( 1940 )

DISSENTING OPINION. As is indicated in the majority opinion, there is in effect but one question involved in this appeal, and that is the question whether or not the provision in the will involved in this case by which appellee, John Raymer, widower of the testatrix, was nominated executor of her last will, was a "pecuniary or other provision" within the meaning of that phrase as used in § 6-2333, Burns' 1933.

"The law as it existed prior to 1891 cast upon the husband one-third of his deceased wife's real estate. By the Act of March 4, 1891, Sec. 2642, Burns' 1894, Sec. 2485, Horner 1897, the proviso was added to the statute giving to the widower the right to elect to take under the will, making the statute read as follows: `If a wife die testate or intestate leaving a widower, one-third of her real estate shall descend to him, . . . provided, if the wife shall have left a will, such widower may elect to take under the will instead of this or any other law of descents of the State of Indiana. . . .'" (§ 6-2321, Burns' 1933.)

"The statute providing for the disposition of property by the will of the husband or wife and for an election by either of them to accept its benefits, is for the benefit of those sustaining that relation. They (the statutes) have reference only to their (husband's or wife's) interests and preferences; the interests of the creditors are not taken into consideration. It is a matter solely between the husband and wife. It permits that to be done after the death of either one of them, with reference to that portion of the estate of the deceased which without the authority of the statute vested at once in the survivor, what together they might have done during their joint lives. The right of election is in the husband and not in his creditors. . . ." Traudt v.Hagerman (1901), 27 Ind. App. 150.

It is apparent from the language of this court which we have quoted from Traudt v. Hagerman, supra, that the statute construed in that case is different from § 6-2333, Burns' 1933,supra, which governs this case, but the reasoning in that opinion, which we have quoted, is applicable to § 6-2333, Burns' 1933, supra. See Studebaker Bros. Mfg. Co. v. DeMoss (1916), 62 Ind. App. 635, wherein similar statements are made with reference to § 6-2333, Burns' 1933, supra.

The majority opinion purports to distinguish the case ofStudebaker Bros. Mfg. Co. v. DeMoss (1916), 62 Ind. App. 635,supra, from the instant case. That case is distinguishable infacts from the instant case as set forth in the majority opinion but the decision in the Studebakercase, supra, is not based upon such difference in facts.

This court said in that case: "The statute (§ 6-2333, Burns' 1933, supra) is to the effect that if any provision is made for the husband by the wife's will, regardless of whether it be a property provision, a pecuniary provision, or a right not strictly classified as property, or not strictly of a pecuniary nature, the fact of such provision requires him to elect in manner and form as specified `to retain the rights in his wife's estate given him under the laws of the state,' and failing so to do, he `shall take under such will of his late wife, and he shall receive nothing by reason of any law of descent of the State of Indiana. . . .' The obligation to elect does not depend oncomparative values. The provision made for him by the will may be very much less in value than his rights under the statutes of descent, or it may have no real marketable or monetary value, still if it confers on him some benefit, he is put to an election. The fact of a provision made by the will, rather thanits value, arouses the obligation to elect. . . . As a practical proposition . . . selection to a trusteeship of an extensive estate where the trust is to continue for a long period of time might have a very considerable pecuniary value. Under other circumstances, the pecuniary value of the trusteeship might be small. In the case at bar the monetary value to the trustee of the trust created by the will may be small or it may be large. On this subject the record does not advise us. Nor is it important in the determination of this cause. . . . The right created in the husband to execute the trust created by the will and to serve as executor thereunder involves enough of value to amount to a provision for the husband by the wife's will." (My italics.)

We think the language which we have quoted from the Studebaker case, supra, and that opinion as a whole, show clearly that the decision of this court, as to whether or not said provisions in the Studebaker will made for the husband were "pecuniary or other provisions" within the meaning of that phrase as used in § 6-2333, Burns' 1933, supra, is predicated on the fact that bysaid provisions the husband acquired the right to act as executorand the right to act as trustee, and that said decision is not predicated upon the fact that by said provisions in the will the husband obtained a "release" from his obligation to support his child and an opportunity to obtain "reasonable compensation" by acting as trustee.

I consider the reasoning which we have quoted from Traudt v.Hagerman, supra, and from the Studebaker case, supra, to be sound and applicable to the instant case.

The question as to whether or not an executor is competent to testify as a witness in matters concerning the estate, of which he is executor, has no pertinency to the question as to whether or not a provision in a wife's will nominating her husband as executor of her will is a "pecuniary or other provision" made for him within the meaning of that phrase as used in § 6-2333, Burns' 1933, supra; therefore, the decisions of this court and our Supreme Court involving the competency of persons named as executors, to testify as witnesses in estate matters, some of which decisions are cited in the majority opinion, can shed no light upon the question involved in this case.

The "ejusdem generis" doctrine referred to in the majority opinion is not applicable here because we do not have before us, for construction, a statute where "words of aparticular description . . . are followed by general words that are not so specific." (My italics.) See Miller v. State (1889), 121 Ind. 294, 23 N.E. 94, followed in McNamara v.State (1932), 203 Ind. 596, 181 N.E. 512. Here we have words or terms of a general description, to wit: "Personal (property provisions)," "real property (provisions)," and "pecuniary (provisions)," followed by the general words or term "other provisions."

The construction placed upon § 6-2333, Burns' 1933, supra, by the majority opinion, in effect, reads the words or term "other provision" out of said statute and it is, in effect, a holding that said term is meaningless. It is my opinion that said term "other provision," as used in said statute, means "other provision or provisions which are not of the same kind as personal property provisions, real property provisions or pecuniary provisions."

It is therefore my opinion that the provision in the wife's will, by which her husband was nominated executor of her last will, was a "pecuniary or other provision" within the meaning of that phrase as used in § 6-2333, Burns' 1933. The reasoning which we have quoted from Traudt v. Hagerman, supra, and fromStudebaker Bros. Mfg. Co. v. DeMoss, supra, supports such opinion.

The judgment should have been affirmed.

Bridwell, P.J., concurs in this dissenting opinion.

NOTE. — Reported in 26 N.E.2d 75.