Bruns v. Cope

• Decision Date: 26 May 1914
• Docket Number: 22,398
• Parties: Bruns v. Cope
• Court: Indiana Supreme Court

105 N.E. 471

182 Ind. 289

Bruns v. Cope

No. 22,398

Supreme Court of Indiana

May 26, 1914

Rehearing Denied October 13, 1914.

From Allen Circuit Court; John W. Eggeman, Judge.

Action by John W. Bruns against Daniel C. Cope. From a judgment for defendant, the plaintiff appeals.

Affirmed.

H. I Smith and Robert B. Dreibelbiss, for appellant.

E O'Rourke, Joseph M. Haley, Frank J. Belot and M. H. Luecke, for appellee.

OPINION

Morris, J.

The appellant, John W. Bruns, was a brother of Charlotte Cope, who died intestate, in November, 1911, leaving surviving her neither ancestor nor descendant. She was married in July, 1911, to appellee Cope. At her death, she was the owner of real and personal property. This is an action to quiet title, and for the partition of decedent's land. There are various paragraphs of complaint, to each of which a demurrer was sustained, and on this action are predicated the errors here assigned. Three questions are presented by appellant's brief, which we will consider in the order presented.

Section 26, of an act regulating descents, passed in 1852, provides that "If a husband or wife die intestate, leaving no child and no father or mother, the whole of his or her property, real and personal, shall go to the survivor." 1 R. S. 1852 p. 248, § 2490 R. S. 1881, § 3028 Burns 1914. By an act approved March 4, 1853 (Acts 1853 p. 55, § 4), the legislature attempted to amend § 26, supra, of the descents act, to read as follows: "If a husband or wife die intestate, leaving no child, and no father or mother, nor brothers and sisters, nor their descendants, the whole of his or her property, real or personal, shall go to the survivor." Appellant claims this amending act is in effect, and that under its provisions two-thirds of the decedent's realty descended to her surviving brothers and sisters. In Langdon v. Applegate (1854), 5 Ind. 327, this court held that, by virtue of § 21 of Art. 4, of the Constitution of Indiana, which provides that "No act shall ever be revised or amended by mere reference to its title; but the act revised, or section amended shall be set forth and published at full length," an amending act which failed to set out the section amended was void. The act of March 4, 1853, attempting to amend § 26, supra, of the descents act, failed to set forth said § 26, and, after the decision of Langdon v. Applegate, supra, it was deemed as unconstitutional and void. At the November term, 1867, in Greencastle, etc., Turnpike Co. v. State, ex rel. (1867), 28 Ind. 382, this court overruled the case of Langdon v. Applegate, supra, but in the meantime, in March, 1867, the legislature, in anticipation of such overruling, enacted a statute repealing all laws theretofore passed not in conformity with the ruling in Langdon v. Applegate, supra. Acts 1867 p. 204, § 246 R. S. 1881, § 246 Burns 1914. By this act it was intended to repeal the said act of March 4, 1853, and ever since that time it has been held by this court that said act of March 4, 1853, was not in effect, and that § 26, supra, of the descents act of 1852 governed in cases falling within its provisions. Waugh v. Riley (1880), 68 Ind. 482, and authorities cited; Haugh v. Smelser (1903), 31 Ind.App. 571, 572, 66 N.E. 55, 506, and cases cited. Appellant contends here that as the said repealing act of March, 1867, was passed before the opinion was handed down in Greencastle, etc., Turnpike Co. v. State, ex rel., supra, and when the case of Langdon v. Applegate stood unoverruled, such repealing act itself was unconstitutional and void because it did not conform to the ruling in Langdon v. Applegate, supra; that consequently the act of March 4, 1853, supra, was never repealed, and must be held in effect under the ruling in Greencastle, etc., Turnpike Co. v. State, ex rel., supra. We are of the opinion that this contention requires no discussion. We hold that said act of March, 1867, was constitutional and repealed the 1853 amending act in question, and appellee Cope as surviving husband took the entire estate of his wife by virtue of § 26, supra, of the act of 1852. § 3028 Burns 1914, § 2490 R. S. 1881.

Appellant's second contention involves a consideration of the act of March 2, 1907, reading as follows: "That no person who unlawfully causes the death of another and shall have been convicted thereof, or aids or abets in such unlawful killing of another, shall take by devise or descent any part of the property, real or personal, owned by the decedent at the time of his or her death." Acts 1907 p. 136, § 2995 Burns 1914. It is averred in certain paragraphs of the complaint that Mrs. Cope committed suicide as a result of certain words and deeds of her husband who thereby aided and abetted in unlawfully causing her death. It is not alleged that appellee Cope has been convicted, as principal or accessory, of the unlawful killing of his wife. If it should be conceded that the paragraphs in controversy, aside from the failure to allege a conviction, state facts sufficient to bar appellee Cope from inheriting his wife's property, such failure must be deemed as rendering the pleading insufficient on demurrer. The right to acquire property by descent is a creature of the law. Donaldson v. State, ex rel. (1915), post 615, 182 Ind. 615, 101 N.E. 485, and authorities cited. Neither the common nor civil law canons of descent, as such, ever obtained in Indiana. Our statutes cover the entire field of succession to a deceased intestate's property, and comprehend any conceivable case. Since the adoption of the ordinance of 1787, the right of inheritance in Indiana has been determined solely by statutory enactment. Clud v. Bruce (1878), 61 Ind. 171; Bruce v. Bissell (1889), 119 Ind. 525, 22 N.E. 4, 12 Am. St. 436; Morris v. Holliday (1906), 39 Ind.App. 201, 76 N.E. 861. As our canons of descent are fixed and positive expressions of the legislative intent, equitable rules can not be interposed to vary their effect. Armington v. Armington (1867), 28 Ind. 74; Rountree v. Pursel (1895), 11 Ind.App. 522, 39 N.E. 747. Previous to this act of 1907, no statutory exception barred a surviving wife or husband from taking under § 26, supra, of our statute of descents, because of crime, even if that of murder of the decedent, and consequently unless appellee Cope is barred by the provisions of that act from inheriting his wife's property, he takes it all under the provisions of § 26, supra, of the descents act of 1852. McAllister v. Fair (1906), 72 Kan. 533, 84 P. 112, 3 L. R. A. (N. S.) 726, 115 Am. St. 233, 7 Ann. Cas. 973, and authorities cited. The act of 1907, by its plain provisions, bars no one from inheriting unless he has been convicted, as principal or accessory, of the unlawful killing of the person whose property he claims through the laws of descent. There was no error in sustaining the demurrer to the paragraphs of complaint relating to the cause of the wife's death.

Appellant's third contention is founded on the alleged error in the sustaining of the demurrer to the seventh, eighth and tenth paragraphs of complaint. In the latter paragraph it is alleged that Charlotte Cope and appellant Daniel C. Cope, on July 10, 1911, procured a marriage license, and, on the same day a pretended marriage was solemnized between them; that at the time, and previous thereto, Charlotte Cope was of unsound mind and incapable of entering into a marriage contract, all of which appellee Cope well knew, and because of said facts the pretended marriage was void. It is further averred that Charlotte Cope died in November, 1911, owning certain described real estate, and leaving surviving her neither ancestor nor descendant, but leaving appellant, a brother, and certain named defendants, other than appellee Cope, as her only heirs at law; that the named heirs are the owners in common of the real estate, but that appellee is claiming, without right, some interest in the land. The paragraph closes with a prayer for partition and to quiet the title of the alleged heirs against the alleged unfounded claim of appellee. The allegations of the seventh and eighth paragraphs differ somewhat from those of the tenth, but, in his brief, appellant presents no question in regard to them that would not apply to the ruling on...