Keys et al. v. Wright et al., 156 Ind. 521

Baker, J. Appellants brought this action to contest the will of Hannah Moore1 on the grounds that the testatrix was of unsound mind and that the alleged will was unduly executed. Appellees pleaded two affirmative defenses':

(1) That each appellant was given by the will certain .real estate in severalty, and immediately after the will was probated entered under the'will into possession of the realty so devised, and has ever since remained in possession, en-' joying the rents and profits; and (2) that each appellant was given by the will certain real estate in severalty, and immediately after the will was probated, with full knowledge of the mental condition of the testatrix at the time the will was executed and' of the manner in which and the circumstances under which the will was executed, entered under the will into possession of the realty so devised, and has ever since remained in possession, enjoying the rents and profits.

Appellants’ demurrers to these answers for want of facts having been overruled, judgment was entered on appellants’ refusal to reply. ■ - The second answer shows a deliberate election to take under .the will; and this election precludes appellants from assailing the will’s validity. Lee v. Templeton, 73 Ind. 315; Test v. Larsh, 76 Ind. 452; Floyd v. Floyd, 90 Ind. 130; Palmerton v. Hoop, 131 Ind. 23; Wilmore v. Stetler, 137 Ind. 127, 45 Am. St. 169; Holland v. Spell, 144 Ind. 561; Wilson v. Wilson, 145 Ind. 659; Lee v. Tower, 124 N. Y. 370.

Whether or not the first answer is good is made a moot question by the state of the record. The judgment against appellants for their ■ refusal to reply to the second answer is unquestionably correct. Their refusal to- reply confirmed their admission of the truth of the áverments in the second answer. They assert that the first is bad on account of the omission of the allegation of -knowledge, which is the only allegation of the second answer that is not in the first.

It is idle to decide whether or not appellants’ acceptance of the devises, without knowledge of the testatrix’s mental unsoundness and the manner in which and the circumstances under which the will was executed, would defeat their action, when the record shows a judgment against them on their confession that they had such knowledge.

If they had denied the answers and if there had been a general verdict for appellees, the judgment on such verdict would have to be reversed if the first answer was bad, because the record would not show that the jury had found the additional allegation of knowledge in the second answer to be true. But if there had been a. special verdict in which all the averments of the second answer were found to be true, the judgment would not be reversed even if the first answer was bad. Gunder v. Titbits, 153 Ind. 591; State v. Parsons, 155 Ind. 67; Ewbank’s Manual §257.

Surely, a finding of the jury can not be more binding upon appellants than tbeir own ■ solemn admission on the record. ■ Judgment affirmed.