Bryan v. Uland

• Decision Date: 12 May 1885
• Citation: 1 N.E. 52,101 Ind. 477
• Parties: Bryan v. Uland and others.
• Court: Indiana Supreme Court

101 Ind. 477

1 N.E. 52

Bryan

v.Uland and others.

Supreme Court of Indiana.

Filed May 12, 1885.

Appeal from Greene circuit court.

Cavins & Cavins, for appellant.

Shaw & Bays, for appellee.

Mitchell, J.

Counsel on both sides agree that the facts are correctly stated in a special finding made by the court. It appears that John Uland died in the year 1862, the owner of several tracts of land in Greene county. He left surviving him his widow, Nancy Uland, who was his second wife, without a child or children, and he also left six children by a previous marriage. At the September term, 1863, of the Greene circuit court, there was set off to the widow, in a partition proceeding instituted by her, the tract of land in controversy in this case. The residue of the lands of which the decedent died seized were in the same proceeding, to which all the heirs were parties, set off to the appellees, his children, as tenants in common. It was recited in the decree that the widow was the owner of a life-estate in the lands set off to her, and that the children owned the fee-simple in the whole. On the twenty-eighth day of October, 1864, the adult heirs of John Uland conveyed by quitclaim deed all their interest in the real estate of which their father died seized, including that set off to the widow, to Michael Tribbey, and on the seventeenth day of January, 1865, the guardian of the minor heirs, pursuant to an order of the probate court, made a like conveyance of the interest of his wards to the same person. On the third day of December, 1864, the widow, Nancy Uland, made a quitclaim deed for her interest in the tract set off to her, to Tribbey, who at that time took possession of the whole property and held it until his death. After the death of Tribbey, Bryan, the appellant, acquired whatever estate he took in the lands from his heirs, and went into possession.

It is found by the court that both Tribbey and the appellant had notice at the time of their respective purchases that Nancy Uland was the second wife, without children, of John Uland, and that she was in life, and that the appellees were children of a previous marriage. Both made valuable improvements and paid the taxes on the land in dispute during the life-time of the widow, and it was also found that the appellees each received his or her share of the purchase money during her life-time. The widow died in February, 1880, and the appellees, the surviving children of John Uland, commenced this suit on the ninth day of May, 1882, to quiet their title to the land set off to the widow under the proceedings in partition. Upon the facts found, the court stated, among other conclusions of law, that the appellees were the owners as tenants in common of the land in controversy; that they were not estopped by the recitals in the decree of partition, nor by their quitclaim deeds, nor by reason of having received the purchase price of the land during the life-time of the widow, and that the purchaser was not entitled to an allowance for improvements made while occupying the land during her life-time.

There was for a time some apparent uncertainty concerning the estate which the childless second wife took in the real estate of her husband at his death, but it is now settled by repeated decisions that under section 2483, Rev. St. 1881, such widow in virtue of her marital rights takes one-third of her husband's real estate in fee-simple, free from all demands of creditors.

The only difference between the estate of a first wife and a childless second wife is created by the proviso to section 2487, Rev. St. 1881, by which the deceased husband's children of the previous marriage became, at the death of the childless second wife, her forced heirs, as respects all lands acquired by her in virtue of such second marriage. Utterback v. Terhune, 75 Ind. 363;McClamrock v. Ferguson, 88 Ind. 208;Hendrix v. McBeth, 87 Ind. 287;Slack v. Thacker, 84 Ind. 413; Flenner v. Benson, 89 Ind. 108;Flenner v. Insurance Co. Id. 164; Caywood v. Medsker, 84 Ind. 520;Armstrong v. Cavitt, 78 Ind. 476;Louden v. James, 31 Ind. 69.

Under the construction which this proviso has...