(147 N.E.) [8] The fact must not be overlooked that the plaintiff's action is essentially a suit in equity. It can bé nothing else, for it involves the cancellation of a judgment. In this jurisdiction prior to the adoption of the Code, applications like the one at bar were instituted by filing a bill in chancery. Mason v. Palmerton, 2 Ind. 117. "Applications to a court of chancery for a new trial, after a trial at law, are in our time very rare. The practice, except in cases the most extraordinary, has long since gone out of use, because courts of law are now competent to grant new trials, and are in the constant exercise of that right to a most liberal extent. Anciently, courts of law did not grant new trials, and in those days courts of equity exercised that jurisdiction over trials at law, and compelled the successful party to submit to a new trial, when justice required it; but even in that age, the court of chancery proceeded with great caution." Doubleday v. Makepeace, 4, Blackf. 10, 28 Am. Dec. 33; 20 R. C. L. 219. [9] A complaint for a new trial on the ground of newly discovered evidence, pursuant to section 589, Burns' 1914, must be regarded as a substitute for a bill in chancery. See Moore v. Coates, 35 Ohio St. 177. The trial court must determine, in the first instance, whether the proof is clear, strong, and satisfactory; whether an injustice has been done; whether the plaintiff has exercised reasonable diligence; and whether the ends of justice require that a new trial be granted. In passing on each case the trial court exercises a legal discretion, and on appeal its judgment will be reversed only for the abuse of that discretion. It has been aptly said that— "A court clothed with power to grant new trials must necessarily be vested with large discretion." Moore v. Coates, supra. [10] In the light of the foregoing principles, we will now consider the contention that the conclusion of law is erroneous because the plaintiff has not shown that she is free from negligence. The contention rests on the proposition that she might have discovered the evidence concerning the execution of the note in any one of the following ways: (1) By filing proper interrogatories with her pleadings (section 365, Burns' 1914); (2) by taking a preliminary examination (section 533, Burns' 1914); or (3) by examining Smith as a witness at the trial. Assuming, for the sake of elucidating this feature, but for no other purpose, that the procedure indicated by the contention would have been proper on the pleadings filed, yet the fact remains that there must have been something in the mind of the administratrix to suggest that procedure. What was within the scope of her mental vision to prompt her to pursue that course? What was her situation? It may be assumed that she was familiar with her deceased husband's signature and could not deny its genuineness. It may be assumed thereon. As She that she had reason to believe that he had [11] The newly discovered evidence will probably change the result. Section 9089a et seq., Burns' Ann. St. 1914. Evidently the plaintiff's cause appealed to the conscience of the trial court; and there is nothing in the record to justify a reversal. The judgment is affirmed. MCMAHAN, J., dissents. DAILEY et al. v. KUNKEL et al. vised said real estate to her children and grandchildren named in said will, and they asked, in their cross-complaint, that said real estate be partitioned among the children and (Appellate Court of Indiana, Division No. 1. grandchildren of Sarah Kunkel, deceased, and March 31, 1925.) 1. Wills 615-Wife's devise to children at death of husband held not to give latter life estate. Devise by wife to her children and grandchildren at death of her husband held not to give latter life estate. 2. Wills 778-Husband taking nothing by will held to take under statute notwithstanding failure to elect. Husband who took nothing by wife's will held to take one-third of land of which wife died seized, under Burns' Ann. St. 1914, § 3016, notwithstanding his failure to elect to take under statute, since there was nothing for him to accept or reject. 3. Wills 597 (1)-Devise to married daughter to remain in her own name during life time held to create fee. Devise to married daughter "in her own name and right and to remain in her name during her lifetime" held to create fee, in view of evident intent and fact that no following provision detracts from interest. 4. Wills 490-Admission of evidence as to land owned by testatrix and its location held proper. In suit brought by executor to sell land to pay debts of decedent husband, where crosscomplaint set up wife's will describing land as 35 acres, situated in L. township, and devising it to children and grandchildren, and will was attacked as indefinite and uncertain, admission of evidence concerning land owned by wife at death and its location held proper. they further alleged that said real estate was not susceptible of partition and could not be divided, and they asked that a commissioner be appointed to sell same and divide the proceeds among the owners according to their respective interests. The record discloses that Sarah Kunkel died testate, and the only provisions of her will touching upon the questions here involved are as follows: "Item 1. I give and bequeath unto my dear children and grandchildren at the death of my beloved husband, Calvin Kunkel the following real estate consisting of thirty-five (35) acres of land situated in Lancaster township, Wells county, Indiana, apportioned as follows: "First: I bequeath unto my dear son Charles Kunkel, five (5) acres of land. "Second: I bequeath unto my dear son Frank Kunkel, ten (10) acres of land. "Third: I bequeath unto my daughter Nellie Smith, in her own name and right and to remain in her name during her lifetime, ten (10) acres of land. "Fourth: I bequeath unto my dear grandchildren Maurine and Paul Edward, ten (10) acres of land." The evidence further shows that the above real estate was all of the land owned by Sarah Kunkel at the time of her death, and that her will was probated in the Wells circuit court on the 6th day of June, 1923. The evidence discloses that at the death of Sarah Kunkel she left, as her only heirs at law, Calvin Kunkel, her husband, the defendant Nellie Smith, her daughter, and the deAppeal from Circuit Court, Wells County; fendants Charles W. Kunkel and Frank T. F. W. Gordon, Judge. Kunkel, her sons, and the defendants Paul Edward Kunkel and Maurine Hertzog, children of her deceased son. Calvin Kunkel married again after the death of his first wife, and the defendant Suit by Charles G. Dailey, as executor of the estate of Calvin Kunkel, against Mae Kunkel and others, to sell land to pay debts of the estate, in which Nellie Smith and another cross-complain. From the decree, the Mae Kunkel, his widow, is his second wife, plaintiff and cross-defendants appeal. Reversed, with instructions. and is childless. The case was put at issue, and there was a request for a special finding of facts and con Simmons, Dailey & Simmons, of Bluffton, clusions of law. This was done, and the for appellants. Eichhorn & Edris, of Bluffton, for appel- finding of facts and conclusions of law there lees. court, after hearing the evidence, stated its on. The conclusions of law are as follows: THOMPSON, J. This is an action brought by the appellant as executor of the last will and testament of Calvin Kunkel, deceased, to sell real estate to pay debts of the decedent. To this petition answers were filed by all of the parties, and there was also a cross-complaint filed by Nellie Smith and her husband, in which cross-complaint they alleged that Sarah Kunkel died the owner of the real es- (3) That the defendants are entitled to retate, and that by the terms of the will de-cover costs of and from the plaintiff as execFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (2) That the defendant Mae Kunkel has no interest in the said real estate described in finding No. 1 herein. (147 N.E.) utor of the last will and testament of Calvin | in the same manner as widows are now reKunkel, deceased. quired to elect in such cases." (4) That the cross-complainant Nellie Smith is the owner in fee of the undivided two-sevenths of the real estate described in finding No. 1. That the defendant Frank T. Kunkel is the owner of the undivided twosevenths thereof. That the defendant Charles Kunkel is the owner of the undivided one seventh thereof. That the defendant Maurine Hertzog is the owner of the undivided one-seventh thereof. That the defendant Paul Edward Kurkel is the owner of the undivided one-seventh thereof. (5) That the cross-complainant, Nellie Smith, is entitled to partition. That said real estate is not susceptible of division among the several owners thereof, and that a commissioner should be appointed to sell said real estate and make distribution of the proceeds among the cross-complainant and said parties defendant in proportion to their respective interests as herein set out, after paying the costs made upon the cross-complaint and the costs and expenses incident to said sale and distribution. To each conclusion of law the plaintiff Charles G. Dailey, executor, and all of the Kunkels except Nellie Smith, took exceptions. Thereupon Charles G. Dailey, executor of the last will and testament of Calvin Kunkel, deceased, Frank T. Kunkel, Charles Kunkel, Maurine Hertzog, and Paul Edward Kunkel filed separate and several motions for a new trial, alleging in their motions: “(1) That the decision of the court was not sustained by sufficient evidence. "(2) The decision of the court was contrary to law." Appellants further complain of error of the court in overruling objections to certain questions propounded to the witness Nellie Smith. [1, 2] Under this section of the statute the husband took one-third of the real estate owned by the wife at the time of her death, whether she died testate or intestate. Under the will of Sarah Kunkel she gives all of her real estate to her children and grandchildren at the death of her husband, unless said will can be construed as giving Calvin Kunkel a life estate by the use of the language wherein children and grandchildren at the death of she says that she gives the property to her her husband. We cannot so construe said will. We hold that Calvin Kunkel took nothing according to the terms of the will, and therefore that, inasmuch as the will made no provision for the said Calvin Kunkel, he would take one-third of the real estate of which his wife died seized, in fee simple, and the fact that he made no election, in this particular case, would make no difference, for the reason that there was nothing for him, under the will, to accept or reject. For authorities see O'Harra et al. v. Madigan, 48 Ind. 417; Roach v. White, 94 Ind. 510; Studebaker Bros. Mfg. Co. v. De Moss, 62 Ind. App. 635, 113 N. E. 417; Huffman v. Copeland, et al., 139 Ind. 221, 38 N. E. 861; Clark v. Clark, 132 Ind. 25, 31 N. E. 461. [3] The next question to be considered is what interests the cross-complainants take under the will. The will specifically sets forth to whom the real estate is given and when the title shall pass. The only difficulty is to determine whether Nellie Smith took a a life estate. fee-simple or The will is emphatic as to who shall have the land and how much, and there is no provision following the third one therein which is to her daughter Nellie Smith, which detracts or takes from any interest that any of the legatees may have. While this will is an unusual one in form, and somewhat vague, yet we feel that the intention of the testator can The court overruled the motion for a new trial, and plaintiff and cross-defendants ex-be ascertained therefrom, and that her intencepted and appealed. tion was to give them the amount, in each devise, in fee simple. The first question we shall determine is what interest, if any, Calvin Kunkel took as [4] The appellants have attacked the will the surviving husband of Sarah Kunkel, and on the ground that it is indefinite and uncerthis question will have to be determined un-tain, and that the meaning thereof cannot der section 3016, Burns' 1914, together with such other law touching upon the questions involved under the provisions of the will in question. Section 3016, Burns' 1914, provides as follows: "If a wife die testate or intestate leaving a widower, one-third of her real estate shall descend to him, subject, however, to its proportion of the debts of the wife contracted before marriage: 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, which election shall be made within ninety days after said will has been admitted to probate in this state and be ascertained, and they have complained, in their brief, of errors of the court in overruling objections to questions propounded to the witness Nellie Smith concerning the lands owned by her mother at the time of her death, and where said land was located. The court did not err in permitting her to so testify. We have come to the conclusion that the judgment of the court will have to be reversed for the reason that the plaintiff, as executor of the last will and testament of Calvin Kunkel, deceased, should be authorized to sell any real estate said decedent might have owned at the time of his death, for the purpose of raising assets to pay debts and liabilities of the estate of Calvin Kunkel. The conclusions of law as stated by the court are erroneous. The court did not err in overruling objections to certain questions propounded to the witness Nellie Smith, nor in overruling the motion for a new trial. The judgment is reversed, with instructions to the lower court to restate the conclusions of law to conform herewith and to enter judgment accordingly. Judgment reversed. TRUST & SAVINGS BANK OF RENSSELAER v. BRUSNAHAN et al.* (No. 11945.) Parkinson & Parkinson, of La Fayette, and John A. Dunlap, of Rensselaer, for appellant. Hanley & Hanley of Rensselaer, for appellees. NICHOLS, J. Action by appellant against appellees, seeking a review of a judgment and a new trial of a cause tried in the Jasper circuit court resulting in a judgment in favor of appellee Brusnahan, receiver, and against appellant. The first three paragraphs of appellant's complaint were for the review of the judgment. The fourth paragraph of appellant's complaint was for a new trial. The first paragraph of complaint alleged: That appellee Brusnahan, on August 31, 1922, filed his complaint against appellant alleging therein that there were two mort (Appellate Court of Indiana, Division No. 2. gages upon lots 3 and 10 in block 9 in the April 2, 1925.) 1. Judgment 335 (2)-Newly-discovered evidence held not to constitute new matter, justifying review of judgment. Newly-discovered evidence that fixtures attached to garage and alleged to have been converted by defendant were personal property and were so treated by defendant and its vendors, and hence did not pass on a mortgage of property, held not to constitute matter justifying a review of judgment in conversion, where at most it was matter already in issue, and if introduced would not have produced different result. 2. Judgment 335 (2)-Newly-discovered evidence of matter already in issue available only in motion for new trial. Newly-discovered evidence of matter already in issue is available, if at all, only in a motion for a new trial, and is not ground for reviewing judgment. 3. Judgment 335 (2) Changed conditions since rendition of judgment in action for conversion held not to entitle defendant to review of judgment. Changed conditions since rendition of judgment in action for conversion, in that judgments were fully paid and that there was no one to whom money might be paid if collected, held not to entitle defendant to a review of judgment, where judgments were paid by sureties on order of court, and who therefore had right to be subrogated to all rights of creditors whom they had paid, including their right to judgment for damages for conversion of part of property which had been primary security for such judgments. city of Rensselaer, Ind., one in favor of the First National Bank of Rensselaer, Ind., and the second mortgage in favor of Walter M. White et al. That on said lots there was located a certain concrete and brick garage building in which were certain fixtures used in the conduct of a garage. That appellees Kuboske and Walter executed the mortgages and later conveyed the realty to one Schlink, who assumed and agreed to That on May 3, 1922, the pay the same. said mortgages were foreclosed, and appellee Brusnahan was appointed receiver. That appellant removed and converted said fixtures, which were of the value of $2,000. That The action resulted, on December 5, 1922, in a judgment in favor of appellee Brusnahan, receiver, against appellant for $2,000. That on December 8, 1922, appellant filed its motion for a new trial, which the court overruled, thereby committing error. the judgment so rendered should be reviewed for the reason that appellant had used diligence in ascertaining all the facts necessary for his defense in said cause, and that appellant in said cause attempted to prove that the said fixtures were personal property and could be removed. That it made an effort to locate Charles V. Schlink, the former owner of the realty, to whom Kuboske and Walter had conveyed, but did not locate him until August 22, 1923, and that Schlink then informed appellant that said fixtures were personal property and not a part of the real estate. That he and Kuboske and Walter so treated such fixtures, and that he was advised that he had a right to sell the same, which he afterwards did. The purchasers Appeal from Circuit Court, Jasper Coun- from him afterward transferred the fixtures ty; Will Isham, Judge. Action by the Trust & Savings Bank of Rensselaer, a corporation, against Steve Brusnahan, receiver, and others. Judgment for defendants, and plaintiff appeals. Affirmed. to appellant in payment of a debt which they For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) closure of the mortgages owned by the First [ of the other paragraphs, that in the origNational Bank and the White heirs, and that inal complaint, which was the basis of the the First National Bank purchased said real judgment which appellant seeks to review, estate on said date at said sheriff's sale. it was averred that the fixtures were atThat thereafter, on June 8, 1923, Kuboske tached to and a part of the building situate and Walter paid the judgment in favor of on the lot covered by the two mortgages forethe First National Bank by paying the same closed, and had been for a long time prior to the clerk of the Jasper circuit court, and thereto, and that they were essential to the fully paid the judgment in favor of the conduct of a garage, for which the building White heirs. That thereafter appellees Ku- had been exclusively used since its erection, boske and Walter purchased the real estate and that such property was at the time of from Schlink. That on June 6, 1923, appel- the conversion complained of in the poslees Kuboske and Walter assigned their in- session of the plaintiff, who was the receivterest in said judgment to the Farmers' & er appointed by the court in the foreclosure Merchants' National Bank. That the judg-proceeding. Appellant's answer in denial put ment in favor of the First National Bank in issue the question as to whether Schlink having been paid by Kuboske and Walter, and Kuboske and Walter treated such fixappellant was the owner of the judgment taken against appellant. Appellant asked that the judgment be reviewed, and that appellant be adjudged owner of the judgment taken against it in favor of appellee Brusnahan, receiver. The second and third paragraphs of amended complaint were substantially the same in effect as the first so far as here involved. The fourth paragraph of amended complaint was substantially the same as the others the prayer thereof seeking a new trial. On motion of appellees the court required appellant to make more certain and specific the allegations in its second, third, and fourth paragraphs of complaint in certain particulars, which it did by alleging in each paragraph of said complaint that, in the finding and judgment of the Jasper circuit court in the original cause, there was a determination as to primary and secondary liability and suretyship, and that it was adjudged that said Schlink was primarily liable for the payment of the judgments in favor of the First National Bank and the Whites, and that appellees Walter and Kuboske were secondarily liable as sureties. As such sureties, they paid each of.said judgments. Appellees thereupon filed separate and several demurrers to each of said paragraphs of complaint, which were sustained by the court. Appellant refused to amend or plead further, and the court rendered judgment on each of appellees' demurrers, affirmed the judgment for $2,000 sought to be reviewed in this cause, and rendered judgment for costs against the appellant. [1, 2] The errors assigned are the action of the court in sustaining several demurrers to the respective paragraphs of the complaint. Appellant is in error in its contention that the evidence of Schlink that the fixtures involved were personal property and not real estate and that they were so treated by him and Kuboske and Walter constituted new matter which would justify a review of the judgment. It appears by appellant's first paragraph of complaint, as well as by each tures as personal property at the time of the sale to Schlink, and as to whether Schlink was thereby justified in selling the same to appellant's vendor. To meet this issue, the contract of sale and deed from Kuboske and Walter to Schlink was put in evidence, both of which specified that such fixtures were a part of said real estate. There was also oral evidence on this issue. It is apparent that the alleged newly-discovered evidence did not constitute new matter, but at the most newly-discovered evidence of matter already in issue, and as such it was available, if at all, only in a motion or complaint. for a new trial. In Jones v. City of Tipton, 142 Ind. 643, 42 N. E. 221, the court says: "It is very clear that new matter, discovered since the rendition of the first judgment, in order to entitle the losing party to a review of that judgment, must be such matter, as, if alleged in the original pleadings, and supported by the evidence, would have entitled such party to a different judgment." (Our italics.) The distinction between new matter that justifies an action for review, and newlydiscovered evidence as a ground for a new trial, has been many times made. See Hall v. Palmer, 18 Ind. 5; Fleming v. Stout, 19 Ind. 328; Barnes v. Dewey, 58 Ind. 418; Hines v. Driver, 100 Ind. 315. But appellant's fourth paragraph of complaint is for a new trial. Suppose such newlydiscovered evidence had in fact been offered at the original trial; could it have been admitted over the objection of appellee? The answer must be in the negative. If the verbal arrangement or agreement was made before the written contract and deed, it was merged in the written instruments. If it was made contemporaneous therewith, then it could not be heard to contradict the terms of the written instrument. If it was made subsequently thereto, it was wholly without consideration and unenforceable even against a plea of estoppel by appellant, for appellant did not know of such an agreement, and of course did not purchase the fixtures on the faith of it. But if such evidence were admissible, it could only contradict the terms of the writ- |