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Click here for the full text of this decision FACTS:Jane Mangrum, as independent executrix of the estate of G. David Conrad, (G. David), appeals the trial court’s summary judgment in favor of Janet Conrad. G. David died April 6, 2001. He was survived by his second wife, appellee Janet Conrad (Janet), and two adult children from a prior marriage, appellant Jane Mangrum and John J. Conrad. G. David left a will dated April 23, 1998, appointing his daughter as his independent executrix and making the following provision for his wife Janet: “The provision in this paragraph giving my wife, should she survive me, one-half (1/2) of the net proceeds of the liquidation of my assets covered by this paragraph are expressly conditioned upon and subject to my aforesaid wife expressly waiving any rights as a surviving spouse to occupy the home in which we are residing following my death and expressly waiving any other allowances to her as may be provided by law as a surviving spouse. Should my wife, refuse to waive rights of homestead and/or any other statutory allowances or provisions afforded her as a surviving spouse, then all provisions of this Will in favor of my surviving spouse become null and void and all of my property of every kind and nature shall vest entirely in my son and daughter . . . .” The parties do not dispute that the will required Janet to choose between her rights as surviving spouse and the one-half interest conferred by the will. The parties also agree that for more than two years after G. David’s death, Janet continued to live in the home she shared with G. David during their marriage. The parties disagree whether Janet made a timely election to take under the will. HOLDING:Affirmed. The court holds that Janet’s pleadings were sufficient to support her motion for summary judgment, for several reasons. First, Mangrum’s objections to Janet’s pleadings were not raised until the hearing. The trial judge gave Janet permission to make additional filings, which was within his discretion to do. Second, by filing her election in response to Mangrum’s petition for declaratory judgment, and by filing her motion for summary judgment alleging she had elected to take under the will, Janet had already placed the merits of the case at issue. Third, Mangrum’s petition, filed after Janet’s motion to remove Mangrum as independent executrix, was in the nature of a counterclaim, for which a general denial is deemed to have been pleaded by a party who has made an appearance in the action. The court rejects Mangrum’s argument that some additional plea for affirmative relief was required to support Janet’s motion for summary judgment. Mangrum alleges the trial judge erred in denying her motion for summary judgment and granting Janet’s. She contends that Janet’s actions in accepting benefits reserved for surviving spouses precluded Janet from making an election to take under the will, either by estoppel or by creating a fact issue regarding election. The gift to Janet was conditioned on Janet “expressly waiving any rights of a surviving spouse to occupy the home in which we are residing following my death and expressly waiving any allowances to her as may be provided by law as a surviving spouse.” Only if Janet refused to waive these rights would the gift to her under the will become null and void. Neither the will nor any statute required the election to be made at any particular time or by any particular method, although a court may conclude sufficient time has elapsed for making an election. Janet made one election shortly after her husband’s death, and another in writing in response to Mangrum’s request for declaratory judgment. Reviewing the circumstances surrounding the timing, Janet offered evidence that although she made and conveyed her decision to take under the will shortly after her husband died, she remained on the property to care for the livestock until they were sold, because the estate did not make provision for their care after G. David died. She took daily care of the horses until the estate sold them in May or June of 2003, and moved out of state a month later. In this same time period Mangrum filed her request for declaratory judgment and Janet responded to it with her written election. The court concludes that Janet established as a matter of law she timely elected to take under the will. OPINION:Whittington, J.; before Whittington, Wright and FitzGerald, JJ.

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