Byrum v. Henderson

• Decision Date: 01 July 1898
• Docket Number: 18,346
• Citation: 51 N.E. 94,151 Ind. 102
• Parties: Byrum et al. v. Henderson et al
• Court: Indiana Supreme Court

51 N.E. 94

151 Ind. 102

Byrum et al. v. Henderson et al

No. 18,346

Supreme Court of Indiana

July 1, 1898

From the Knox Circuit Court.

Affirmed.

H. S Cauthorn, C. E. Dailey, H. S. Cauthorn, Jr., and John W Weathers, for appellants.

Townsend & Wilhelm and Cullop & Kessinger, for appellees.

OPINION

Monks, J.

This was an action in ejectment and to quiet title, brought by appellants against appellees. The court made a special finding, and stated conclusions of law thereon in favor of appellees, and rendered judgment against appellants. It appears from the special finding that one Joseph Bouchie, in 1856, died intestate, the owner in fee simple of real estate in Knox county, Indiana, leaving surviving him as his only heirs, his widow, Mary Bouchie, a second wife, by whom he had no children, and one Peter Bouchie, his son by a former marriage. Afterwards, on September 6, 1857, said Mary Bouchie, for a valuable consideration, sold, and by quitclaim deed conveyed, said real estate, which she held as widow of said Joseph Bouchie, deceased, to one August Delisle, who then took possession thereof, claiming to own it in fee simple. On January 5, 1858, the said August Delisle and wife and the said Mary Bouchie, for a valuable consideration sold, and by warranty deed conveyed, all the real estate which the said Mary Bouchie conveyed to the said August Delisle to one James Reynolds, who then took possession thereof, claiming to own the same in fee.

At the September term, 1858, of the Knox Common Pleas Court, in an action for partition, brought by said James Reynolds against said Peter Bouchie and his guardian, Vetal Bouchie, the land in controversy was set off to said James Reynolds as the owner thereof in fee. Afterwards the said James Reynolds sold, and by warranty deed conveyed the real estate set off to him, being the real estate in controversy, to one Cassell, who took and held possession thereof, claiming to own it in fee, until 1870, when he sold, and by warranty deed conveyed said real estate to one Henderson, who took and held possession of the same until in August, 1894, when he died intestate, leaving appellees as his only heirs at law, who have held possession of said real estate until the commencement of this action, claiming to own the same in fee. The said Peter Bouchie died intestate in 1873, unmarried, leaving no children or their descendants surviving him, his only heirs being appellants, one of whom is a brother, and the others children of a deceased sister of his deceased father. The said Mary Bouchie died intestate in 1883. The court stated as conclusions of law that appellants were not entitled to recover possession of said real estate from appellees, nor were they entitled to have the title thereto quieted in them against the appellees.

Section 2483, R. S. 1881, provides that if a husband dies testate or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors, with a proviso reducing her interest as to creditors if the real estate exceeds in value $ 10,000, etc. Section 2486, R. S. 1881 provides that if a husband dies intestate, leaving a widow and one child, his real estate shall descend one-half of it to the widow and one-half to his child. It is provided in section 2487, R. S. 1881, that if a man marries a subsequent or second wife, and has by her no children and dies leaving children alive by a previous wife the land which at his death descends to such wife shall at her death descend to his children by the previous wife. Under said sections it was held in Martindale v. Martindale, 10 Ind. 566, decided in 1858, that a second or subsequent wife took a life estate only in the lands of her deceased husband, when he left surviving him children by a former wife. This construction of said sections was adhered to by this court until the case of Utterback v Terhune, 75 Ind. 363 was decided in 1881, in which it was held that under said sections a second or subsequent wife having no children by her husband, took a fee in his land at his death, and if he leaves children alive by a previous wife, that upon her death such children inherit said real estate from her as her forced heirs. This is now the settled, as well as the correct construction of this statute. Haskett v. Maxey, 134 Ind. 182, 187, 19 L. R. A. 379, 33 N.E. 358. Myers v. Boyd, 144 Ind. 496, 43 N.E. 567. Stephenson v. Boody, 139 Ind. 60, 65, 38 N.E. 331 and cases cited. It is settled law, therefore, that under our statutes of descents the same interest descends to a childless second or subsequent wife on the death of her husband, leaving no children or their descendants by a former marriage surviving him, that descends to a first wife. The only difference between the estate of the first wife and a second or subsequent...