On Petition for a Rehearing.
Howard, C. J.In their petition for the rehearing of this case, counsel for appellee say: “The widow sold the property and transferred the proceeds of the sale to appellee in consideration of the home and support afforded her.”
If this statement were strictly correct, we are inclined to think that a rehearing should be granted; for, under the terms of the will of John Mattler, there is no doubt that his widow had a right to use the property left her, to whatever amount might be necessary, for her support. If she needed to use all the estate for her support, there can be no question that she might do so. But the error charged in the motion for a new trial is that the court construed the will to mean that the widow had a right to dispose of the proceeds of the estate “by gift” to the appellee. This she had not a right to do. She would, however, undoubtedly have the right to sell the property of the estate and transfer the proceeds to appellee, or to *654any one else she saw fit', “in consideration of the home and support afforded her”; provided, of course, such consideration were fair and just.
In addition, appellee now contends most earnestly that the appellant had no right to bring this suit. This contention comes late, as we think. The record shows no such question raised in the trial of the cause. The rule is, that the defense that the plaintiff is not the real party in interest, and hence has no right to sue, must be specially pleaded in bar. Felton v. Smith, 84 Ind. 485; State, ex rel., v. Ruhlman, Exx., 111 Ind. 17.
And, in this appeal, no less than on the trial, it would seem that the appellee must be held to have waived the right to make this contention. In a long and elaborate brief, citing and collating numerous authorities, it was sought to have an interpretation of the will sustained, which should render valid the gift made to appellee by the decedent. At the end of that lengthy and well argued brief, scarcely a page was given to the question now so strenuously urged. What was said on the point, too, was as if by way of afterthought, consisting of assertion rather than argument, with but a single citation of authority, and that, as seems to us, having but little reference to the case.
The real question submitted on the appeal, and that with which counsel, as well.as the court, were concerned, was the interpretation of the will. It is hardly becoming now, when that question is decided, to say that appellant had no right, in the first place, to bring any such suit. That should have been thought of before. The jurisdiction of the courts was invoked by the appellant in order to have the will construed. The appellee joined issue. Now, when the issue has been decided, will it do to say, for the first time, that no such issue could arise between the parties?
Filed March 9, 1894.If any error has occurred, the best, if not the only, way to remedy it is to grant a new trial, as has been done.
The petition for a rehearing is overruled.