Denny v. Denny

• Decision Date: 28 January 1890
• Docket Number: 14,864
• Citation: 23 N.E. 519,123 Ind. 240
• Parties: Denny et al., Executors, v. Denny
• Court: Indiana Supreme Court

23 N.E. 519

123 Ind. 240

Denny et al., Executors, v. Denny

No. 14,864

Supreme Court of Indiana

January 28, 1890

Petition for a Rehearing Overruled April 9, 1890.

From the Washington Circuit Court.

The judgment is affirmed, with costs.

D. M Alspaugh, J. C. Lawler, J. A. Zaring, M. B. Hottel and A Dowling, for appellants.

S. B Voyles, H. Morris, S. H. Mitchell and R. B. Mitchell, for appellee.

OPINION

Mitchell, C. J.

Mary Denny filed a claim against the estate of Christopher H. Denny, her late husband, who died testate on the 23d day of May, 1887. The merits of the controversy which ensued may be fully determined by considering the facts specially found by the court. So far as material they show that the testator at various times between the years 1865 and 1874, collected and received from the estates of his wife's father, brother and grandmother. respectively, sums of money aggregating about $ 2,600, the money so received being the distributive share of his wife in the respective estates of her ancestors and relatives. The money was collected and received by the husband from the representatives of the several estates, with the knowledge of the wife, but without any express agreement or understanding, at the time the several sums were received, concerning its repayment. The testator used the money to pay his personal indebtedness, and to pay for real estate, the title to which he took in his own name, and also in the erection of a more commodious family residence, which the claimant was anxious to have erected for the family. The house was erected on the testator's land. It does not appear how much was expended in erecting the house.

The testator by his last will and testament devised and bequeathed to his widow an undivided one-third interest in all his real estate, and also five hundred dollars in personal property, and one-third of his personal estate after the payment of his debts. There was a stipulation in the will that the legacies therein provided were "in lieu of all or any claims of any kind whatever by any of the aforesaid legatees to my estate."

Before the expiration of one year after the death of the testator the claimant filed her written renunciation of the provision made for her by the will, and declared her purpose to assert her rights under the statute; but prior to the making of such renunciation she had filed her claim against the estate. It is found by the court that the testator had four children by a former marriage, and two by the marriage with the claimant, and that the latter consented to the use of her money by her husband upon the understanding that by his will, or otherwise, he would divide his estate, including the moneys belonging to her, equally among all the children of both marriages, and that the testator did not so divide his estate, and did not make the children by the marriage with the claimant equal with the children by his former marriage, but gave them a merely nominal sum.

As a conclusion of law, the court allowed the claimant the principal of her claim, with interest at six per cent. from the date on which it was filed against the estate.

The facts found present a case in many respects parallel with Hileman v. Hileman, 85 Ind. 1. The ruling in that case was to the effect that the presumption of law, under the statute of this State, is that the separate property, or money, of a wife, which is taken possession of by her husband, is to be considered as held by him for her use and benefit, until such presumption is overcome by evidence showing that she intended to make a gift of the property to him.

In Armacost v. Lindley, 116 Ind. 295, 19 N.E. 138, this court held that where a husband, at his own suggestion or request, obtained the title or possession of his wife's separate property, which the statute declares shall remain her own, even though the possession be obtained with her consent, unless the facts and circumstances show an agreement, or intention on the part of the wife that her husband shall receive it as a gift, the law will presume that he took as her agent, or trustee. Wales v. Newbould, 9 Mich. 45; Mellinger v. Bausman, 45 Pa. 522; McNally v. Weld, 30 Minn. 209, 14 N.W. 895.

It is said, however, that Hileman v. Hileman, supra, was modified or overruled by Bristor v. Bristor, 93 Ind. 281; Bristor v. Bristor, 101 Ind. 47.

In the case last cited it was held that where a husband receives and applies the income of the wife's land to the common use of the family, with her consent, and under circumstances indicating no purpose by either that he shall be charged therewith, she can not, after his death, maintain a claim therefor against his estate.

We do not regard the decision in Bristor v. Bristor, supra, as in conflict with the point in judgment in Hileman v. Hileman, supra. In the one case the husband received and appropriated to his own use the principal of moneys due the wife from her father's estate, while in the other the income or rents and profits of the wife's real estate had been received by her husband and applied to the support of the family.

These later cases simply recognize the well-established doctrine that a married woman may bestow the income of her separate estate upon her husband, and follow an almost unbroken line of decisions which hold that where a husband, with the consent of his wife, is in the habit of receiving the income, profits and dividends of her separate estate, and using them for the benefit of the family, it will be presumed that the wife consented and agreed that he should so receive and use them, and the law will not compel him to account. In re Jones, 6 Biss. 68, 13 F. Cas. 927; 2 Story Eq. Jur., section 1396.

A well-established distinction exists, however, when the husband receives and appropriates the corpus or principal of his wife's separate property. The rule governing is well stated in Jones v. Davenport, 44 N.J. Eq. 33, 13 A. 652, in the following language: "When a husband receives money belonging to his wife, the law presumes that he received it for her use, and if he denies that he is liable therefor, the mere fact that he received it casts...