Crawfordsville Trust Co. v. Ramsey-55 Ind. App. 40. essential to authorize a conclusion of law that a decedent's widow was entitled to her distributive share in property involved in a gift or assignment made by him with a view to defeating her rights as a widow. p. 74. 16. APPEAL.-Review.-Ruling on Motion to Retax Costs.-Where there was no judgment for appellants on any issue involved, and no motion for any such judgment, no available error is presented on the overruling of a motion to retax costs. p. 74. 17. HUSBAND AND WIFE.-Assignment by Husband to Defeat Wife's Interest in Estate.-Evidence.—Admissibility. In a widow's action to set aside an assignment of stocks and bonds made by her husband for the purpose of defeating her rights as widow, the admission of evidence of plaintiff to the effect that she did not see the instrument, which was executed only two days before his death, was proper as bearing on the question of decedent's mental condition. p. 74. From Clinton Circuit Court; Jos. Combs, Judge. Action by Ice H. Ramsey against The Crawfordsville Trust Company, as executor of the will of Alexander F. Ramsey, deceased, and others. From a judgment for plaintiff, the defendants appeal. Affirmed. Guenther & Clark, Crane & McCabe and Finley P. Mount, for appellants. Thomas & Foley, Samuel M. Ralston, Harry C. Sheridan and Kennedy & Kennedy, for appellee. HOTTEL, J.-This action is based upon a complaint of five paragraphs covering about sixty printed pages. Answers and replies correspondingly long and a special finding of facts with conclusions of law extending over sixty-four printed pages were also filed in the case. This, with a record containing over 4,000 pages of evidence, and numerous separate assignments of error by many appellants, make it extremely difficult to present, in an opinion of reasonable length, a statement of the issues, the findings and the evidence that will intelligently present the several questions to be determined. However, this labor has been materially lessened by a recent decision of the Supreme Court in the case of Crawfordsville Trust Co. v. Ramsey (1912), 178 Crawfordsville Trust Co. v. Ramsey-55 Ind. App. 40. Ind. 258, 98 N. E. 177, which, for the reasons hereinafter indicated, has eliminated one branch of the case and a number of questions incident thereto. There is no dispute between the parties as to certain general facts upon which the several pleadings are based, and which are found by the finding and shown by the evidence. These facts are necessary to an understanding of the questions with which this opinion will have to deal, and we now set them out. Alexander F. Ramsey, for many years a resident of the city of Crawfordsville, Montgomery County, Indiana, died testate at Hot Springs, Arkansas, on March 11, 1907, leaving surviving him, a widow, Ice H. Ramsey, the appellee; a son, Charles P. Ramsey, and a daughter, Hepsey B. Yount, as his only heirs. The decedent was twice married before his marriage to appellee. The first and second marriages were each dissolved. He married appellee January 13, 1883. The son and daughter were children by his second wife. At the time of his death, decedent had accumulated a considerable fortune and during his life had made three wills. The first will was made June 11, 1894, the second, August 25, 1906, and the last, February 5, 1907. In each of these wills the decedent provided for a fund to be known as the "A. F. Ramsey Relief Fund for the Poor of Crawfordsville, Indiana." For the purposes of the questions to be determined in this opinion, the provisions of the several wills may be treated as being the same in each will, except that in the last will the decedent added to the poor fund forty "One thousand dollar bonds" of the "Indianapolis, Crawfordsville and Western Traction Company" which were of the value of $24,000, together with all the stock which he held in that company which was of no value, and instead of devising the stocks and bonds to the board of commissioners of said county alone as trustee, as in his former wills, he devised such stocks and bonds to such board of commissioners and their successors in office, and to the Crawfordville Trust Company of Crawfordsville, Crawfordsville Trust Co. v. Ramsey-55 Ind. App. 40. Indiana, jointly as trustees. At the time of the making of the second will, the decedent signed and acknowledged a quitclaim deed conveying to his wife two pieces of business property in the city of Crawfordsville of the probable value of $15,000 and the annual income from which was $1,680. This deed, was not delivered to the wife until in January or February, 1907. Each of the wills devised the real estate known as the home place to appellee for life and at her death to go to the daughter Hepsey B. Yount. Certain other real estate was devised to her for life and at her death to the trustees of said poor fund. The decedent organized the Citizens National Bank of Crawfordsville, Indiana, in 1883 and was elected its president and held such position until his death. In the year 1889, he organized the Crawfordsville Trust Company, became one of its stockholders and directors, was elected its president and sustained such relations to said trust company until his death, and made the office of such company his principal place of business. Walter F. Hulet was the secretary of such trust company during a great part of this period. About the year 1905, Ramsey with others organized the "Indianapolis, Crawfordsville and Western Traction Company" known as the "Ben Hur Line," for the purpose of building an interurban road from Crawfordsville to Indianapolis and at the time of such organization became a stockholder and director and was elected and remained its president until his death. After making his last will, Ramsey obtained information that the trust fund therein created could be diminished by his widow electing to take under the law instead of taking under the will and he then, on February 21, 1907, prepared, signed and delivered to Mr. Hulet an instrument of assignment assigning to the same trustees the same stocks and bonds which he had in his will given to such trustees and at the same time prepared, signed and delivered another instrument of assignment assigning other and additional shares of bank stock. These deeds of assignment referred to the Crawfordsville Trust Co. v. Ramsey-55 Ind. App. 40. provisions of the will as furnishing the purpose for which the trust was created and providing the manner of its management and control. On March 9, 1907, two days before the death of Mr. Ramsey, Mr. Hulet was in Hot Springs, Arkansas, and at that time the decedent signed and delivered to him another deed of assignment for the same stocks and bonds before assigned. Said assignments of said stocks and bonds and each of them were without any consideration. On March 20, 1907, the appellee executed an election in writing to take under the will of her deceased husband and March 22, 1907, caused it to be filed in the office of the clerk of the Montgomery Circuit Court and recorded in the will record of that court. Hepsey B. Yount, as a consideration for the filing of the election, conveyed to appellee by quitclaim deed the real estate in Crawfordsville known as the home place in which appellee had been given a life estate by the will of her deceased husband. Said deed contained the following provisions, viz., "And the said grantee by accepting this deed waives all her rights in and to the estate, both real and personal, of which the said Alexander F. Ramsey died seized, wherever situate, excepting only those rights and interests saved and secured unto her by the terms of said will, and which said will was probated in the Montgomery Circuit Court on the 16th day of March, 1907. Provided always, that this conveyance is upon the express condition that the will of Alexander F. Ramsey, deceased, shall not be set aside, broken and held for naught at any time by the judgment of any court, then this deed shall in all respects be void." On March 25, 1907, appellee by an instrument in writing, duly signed and acknowledged, revoked her election to take under the will and elected to take as the widow of her deceased husband and therein accepted the provisions made for her by the statute and law of descent of the State as such widow, which instrument was filed by her on said day with the clerk of said court and was by such clerk recorded in the will records of said county, and Crawfordsville Trust Co. r. Ramsey-55 Ind. App. 40. appellee on said day caused to be served on said trust company trustee, notice in writing of her intention to rescind and revoke her said election made on March 20, and that she had filed her election to take under the law, and on said day signed, acknowledged and tendered to Hepsey B. Yount a quitclaim deed for said home place, being the same real estate before mentioned herein as being conveyed by Hepsey B. Yount to appellee. In January, 1906, decedent was taken ill, was threatened with pneumonia and was under the care of a physician, and in the latter part of February, an examination of his urine disclosed that he was suffering from acute Bright's disease. On August 28, 1906, the decedent, accompanied by his wife and family physician went to Mountain Valley Springs, Arkansas, to recuperate his health. He arrived at the Springs, September 1 and remained until December 20, 1906, when he returned to his home in Crawfordsville. His illness grew worse and on February 26, 1907, he,, in company with his wife and a colored servant went to Hot Springs, Arkansas, to get the benefit of the waters of that city, and there died on March 9, 1907. The decedent, on each of the occasions when he made the assignments of the stocks and bonds above referred to, and for sometime prior thereto, knew the character of his illness, knew that it was fatal and that he had but a short time to live. After this suit was filed, Hepsey B. Yount died leaving a husband and three minor children. Said trust company was appointed administrator of her estate, and guardian of her minor children and as such it and the husband of Hepsey B. Yount were substituted as defendants. As the question of the sufficiency of the several pleadings is not presented, we need only indicate their general scope and tenor. The first paragraph of the complaint sets out the will of the decedent, the appellee's election to take thereunder, her after revocation and asking to have her election set aside and that she be permitted to take under |