Collins v. Collins

• Decision Date: 11 November 1890
• Docket Number: 14,339
• Citation: 25 N.E. 704,126 Ind. 559
• Parties: Collins v. Collins et al
• Court: Indiana Supreme Court

25 N.E. 704

126 Ind. 559

Collins v. Collins et al

No. 14,339

Supreme Court of Indiana

November 11, 1890

Reported at: 126 Ind. 559 at 564.

From the Marion Superior Court.

The judgment is reversed, with directions to remand the cause to special term for a new trial according to the construction placed upon said section 2505 of the statute.

B Harrison, W. H. H. Miller, J. B. Elam and J. P. Baker, for appellant.

R Denny and J. R. McFee, for appellees.

OPINION

Berkshire, C. J.

This was an action for partition of real estate, brought by the appellant against the appellees and another, who died after the action was instituted.

At special term the appellant recovered judgment as claimed in her complaint, but in general term the judgment at special term was reversed. From the judgment in general term the appellant prosecutes this appeal.

The facts involved in the record are substantially as follows:

On the 17th day of June, 1878, Isaac Collins, a citizen of Marion county, Indiana, executed his last will and testament. At that date he and the appellant were husband and wife, and the relationship continued until his death. When this will was executed the testator had two living children, namely Ephraim Collins and Mary Sampson, the appellant being their mother. When he died the testator was seized of certain real estate in Marion county, Indiana. By his will he devised all of his real estate to the appellant during her natural life, with a limitation in case of her remarriage. Subject to the appellant's life-estate, he devised a certain portion of said real estate to his son Ephraim by description, and the remaining part to his daughter Mary by description. Mary had but one child born to her, and she and the child died in the lifetime of the testator, the child being an infant. The only heirs at law of the testator were the appellant and Ephraim, his son. Ephraim died soon after his father, intestate, leaving the appellees and one other child, an infant, who died after the institution of this suit, as already stated. The testator died on the 30th day of April, 1885. The appellant in due time accepted the provisions of the will.

There are but two questions presented for our consideration: 1. Did the devise to Mary Sampson lapse? 2. If it did, is the widow's inheritance to the real estate, named in the devise, cut off because of her acceptance of the provisions of the will?

That the devise to Mary lapsed we think is clear. The case does not fall within the provisions of section 2571, R. S. 1881, and hence is not saved by that section; and at common law the legacy lapsed. Maxwell v. Featherston, 83 Ind. 339; West v. West, 89 Ind. 529.

The devise to Mary Sampson having lapsed, and there being no residuary devisee named in the will, as to the real estate devised to her, the testator died intestate. Thomas v. Thomas, 108 Ind. 576, 9 N.E. 457, and cases cited.

The appellant, as heir, inherited from her husband, in fee, the one-half of this real estate, and the other moiety descended to Ephraim. And but for the election of the appellant to accept the provisions made for her in the will of her husband, she would still be the unquestioned owner of the undivided one-half of said real estate.

To whatever extent, if any, the appellant became divested of her title to said real estate because of her election to take under the will, in a corresponding degree the title of the appellees, as the surviving heirs of Ephraim Collins, was thereby increased.

The rights of the parties depend upon the construction to be placed upon section 2505, R. S. 1881.

In arriving at a conclusion as to the construction to be placed upon this section of the statute, we have regarded certain provisions of the statute of descents as influential.

Under section 2483, the widow inherits one-third of the real estate of which her husband dies seized, whether he dies testate or intestate. Under section 2486 her inheritance is one-half on condition that he dies intestate. Under section 2489 three-fourths descends to her in case of his intestacy. And by the provisions of section 2490 she takes the whole in case of her husband's intestacy.

Under these provisions the widow's inheritance in the real estate of which her husband dies seized in excess of the one-third given her by the provisions of the first named section, is subject to the pleasure of her husband while in life; he may, if he sees proper, devise it to some one else, and she must submit.

But the one-third goes to her absolutely, and he can only dispose of it by testament, subject to her election after his decease. Morris v. Morris, 119 Ind. 341, 21 N.E. 918, and cases cited. Hence it was wholly unnecessary for the Legislature to make any provision whereby the widow might elect to abide by the husband's disposition by will of his real estate in excess of the one-third given her absolutely. Upon the other hand, some such provision was demanded to make effectual a devise by the husband of the one-third.

As the mischief only applied to the one-third, the presumption must be that the remedy was limited thereto, unless the language employed in the statute requires that it shall have a broader construction.

The following is the reading of the section:

"Section 2505. If...