Denny v. Denny

• Decision Date: 22 December 1887
• Docket Number: 14,066
• Citation: 14 N.E. 593,113 Ind. 22
• Parties: Denny et al. v. Denny
• Court: Indiana Supreme Court

14 N.E. 593

113 Ind. 22

Denny et al. v. Denny

No. 14,066

Supreme Court of Indiana

December 22, 1887

From the Washington Circuit Court.

The judgment is affirmed, with costs.

D. M Alspaugh and J. C. Lawler, for appellants.

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

OPINION

Mitchell, C. J.

Mary Denny, widow of Christian H. Denny, deceased, commenced this proceeding to enjoin the appellants, as executors of the last will and testament of her deceased husband, from selling four hundred bushels of corn, part of the assets of the estate of Christian H. Denny, which the plaintiff alleged she had taken at the appraisement as part of the five hundred dollars to which she was entitled, under the statute, as widow. She averred that she had selected and taken other property of the value of one hundred and fifty dollars, and that the corn in dispute had been appraised at one hundred and forty dollars that, although she had delivered a receipt therefor to the executors, and demanded that it should be set off to her, they had advertised and were about to sell the corn at public sale, and that if it should be sold, she would be left without necessary feed for her animals, and that other corn could not then be readily procured.

The executors answered, in substance, that, before returning the inventory of the personal estate of the decedent, they presented it to the widow and requested her to select such property therein inventoried as she desired to take at the appraisement; that she selected property amounting in value to one hundred and fifty dollars, and that the property selected did not include the corn in dispute. They alleged that the articles selected by her had been duly noted on the inventory, which they averred had been duly signed and returned to the proper clerk's office before the plaintiff notified them that she desired to take the corn in question, and that since the appraisement, and the return of the inventory, the corn had appreciated in value some thirty-five cents per bushel.

The learned court below was of opinion that the plaintiff, upon the facts presented, was entitled to take the corn at the appraisement, and accordingly an order was entered enjoining the appellants from proceeding with the sale, and directing that the corn be delivered to the plaintiff.

The only question involved is as to the right of the widow to select and take property at the appraised value after the return of the inventory and before the sale.

It is provided in section 2269, R. S. 1881, that "The widow of the decedent, whether he die testate or intestate, may, at any time before the sale, select and take articles therein named at the appraisement, not exceeding, in the aggregate, five hundred dollars," etc.

The statute of 1852, and the amendments thereto, in force prior to the act of 1881 above set out, uniformly provided that "The widow, at any time before the return of such inventory, may select and take articles therein appraised, not exceeding in value three hundred dollars," etc. 2 G. & H. 495.

The statute regulating the descent of property, in force prior to the acts of 1881 (1 G. & H. 295), contained a provision to the effect that "A surviving wife shall be entitled, before any distribution, to three hundred dollars of personal property of her deceased husband, to be selected by her at its appraised value; or, if said property shall have been sold, then, to three hundred dollars out of the proceeds thereof."

In a suit by a widow upon an administrator's bond to recover damages for refusing to permit the plaintiff to select and take property under the above statutes, it was held that the statute last above referred to clearly contemplated that the widow should have the right to select and take property at its appraised value at any time before it should have been sold. It was further held that, although the statute then in force, which provided that she might take property at any time before the return of...