Dillman v. Fulwider
| Decision Date | 30 April 1914 |
| Docket Number | 8,323 |
| Citation | 105 N.E. 124,57 Ind.App. 632 |
| Parties | DILLMAN ET AL. v. FULWIDER ET AL |
| Court | Indiana Appellate Court |
Rehearing denied December 11, 1914. Transfer denied January 20, 1915.
From Monroe Circuit Court; James B. Wilson, Judge.
Action by James L. Dillman and others against Oscar Fulwider and another. From a judgment for defendants, the plaintiffs appeal.
Affirmed.
Brooks & Brooks, for appellants.
Miers & Corr, W. E. Hottel and Batman, Miller & Blair, for appellees.
The following is the substance of appellants' complaint: That on March 29, 1881, David C. Dillman died testate in Monroe County, Indiana, the owner in fee of thirty-one acres of land in said county, specifically described in the complaint; that he left surviving him, as his only heirs at law, his widow Nancy A. Dillman, a second, childless wife, and the appellants, who are his children by a former marriage, except appellant, Lora Bell Turner, who is a child of a deceased child of such former marriage; that "said decedent, by his will, executed on the 15th day of November, 1880, devised to the said Nancy A. Dillman, in lieu of her interest in his lands and personal property, one-third of all his estate real and personal of which he might be seized or possessed, which included the real estate hereinbefore described"; that by this will, he bequeathed to certain of said children $ 20 each, and the residue of his estate he bequeathed and devised to the appellants James L. Dillman and Lora Bell Turner; that the will was duly probated on April 2 1881, and letters were regularly issued to Jonathan M. May, named in the will as one of the executors thereof; that on January 22, 1883, said widow, by proper steps, elected to take under the will; that Facts are averred to the effect that Jonathan M. May, as such executor, regularly sold to Henry F. Dillman all the lands of which the testator died the owner, consisting of 167 acres, and that the executor reported the sale to the court at the February term, 1883, which report was approved and confirmed, and a deed ordered; that on February 24, 1883, the executor, pursuant to the order, executed and delivered to the purchaser a deed of conveyance for all said lands, including the 31-acre tract; that "on the same date, the aforesaid Nancy A. Dillman, widow of David C. Dillman, by warranty deed, conveyed to the said Henry F. Dillman the undivided one-third" of all the said real estate; that afterwards, the purchaser having paid the executor the purchase price of the land, the executor paid the widow the one-third thereof, and applied the balance in payment of the costs and expenses of administration and the debts of the decedent; that no notice of any kind was given appellants of the proceedings to sell lands, and they received no part of the purchase price; that said 31-acre tract has been conveyed from Henry F. Dillman to appellee Fulwider, and that Fulwider has possession of the land, and is the owner of the same, except the undivided one-third thereof, which is owned by appellants; that Nancy A. Dillman died intestate on April 3, 1911; that appellants at no time conveyed the lands or any part thereof; that at the death of Nancy A. Dillman, appellants became seized in fee simple of the undivided one-third of the 31-acre tract, and that they are tenants in common therein with said Fulwider, who owns the two-thirds. Appellee, Monroe County Bank, is made a defendant by reason of certain mortgages on the tract held by it, and alleged to have been executed by Fulwider. Prayer for partition, the sale of the tract as undivisible, and distribution of proceeds.
Appellees' demurrer to the complaint was sustained, and judgment entered against appellants for failure and refusal to plead further. The sole question presented is respecting the ruling of the court on the demurrer.
It is at least impliedly conceded by appellants that the ruling of the trial court was correct, and that they have no interest in said 31-acre tract of land, if Nancy A. Dillman's estate therein vested in her as devisee under the will, rather than as widow under the statutes of descent. Appellants argue, however, that by the terms of the will, the widow is given the same interest and estate in the personal and real property of her deceased husband as she would have taken under the statutes of descent if no provision had been made for her by the will, and hence, it is contended that the will was ineffective as to her. If appellants' premise is sound, their conclusion is warranted. "The rule is that if without the devise or bequest the heir would take exactly the same estate or interest which the will purports to give him, he is to be considered as having taken by descent, and not by purchase or under the will." Robertson v. Robertson (1889), 120 Ind. 333, 22 N.E. 310. See, also, McClanahan v. Williams (1893), 136 Ind. 30, 35 N.E. 897; Stilwell v. Knapper (1880), 69 Ind. 558, 35 Am. Rep. 240. Such rule is applicable to the widow. Thompson v. Turner (1910), 173 Ind. 593, 597, 89 N.E. 314, Ann. Cas. 1912 A 740; Denny v. Denny (1890), 123 Ind. 240, 23 N.E. 519.
We proceed to determine whether the will purports to give Nancy A. Dillman the same quantity and quality of estate as she was entitled to take under the law, as such widow, in the absence of any provision for her in such will, and first as to the real estate. The complaint alleges that by the will there was devised to her "in lieu of her interest in his lands and personal property, one-third of all his estate real and personal", etc. It is conceded by both appellants and appellees that the will, under the averment, created in the widow an estate in fee simple absolute in one-third of all the lands of which testator died seized, if it be determined that the widow took under and by virtue of the will. We, therefore, proceed to ascertain the nature, quantity and quality of the estate in the lands that would have descended to the widow as such in the absence of any provision for her by will. The statutes that bear on this question are § 2483 R. S. 1881, § 3014 Burns 1914, and the proviso to § 2487 R. S. 1881. The former provides that "If a husband die 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", etc., and the latter that "if a man marry a second or other subsequent wife, and has by her no children, but has children alive by a previous wife, the land which, at his death, descends to such wife, shall at her death descend to his children." Commencing with Martindale v. Martindale (1858), 10 Ind. 566, decided in 1858 and continuing down to Utterback v. Terhune (1881), 75 Ind. 363, decided at the May term, 1881, it was uniformly held by the Supreme Court that the estate in fee in the land of the deceased husband which such a surviving second or subsequent childless wife would otherwise have taken in said lands was, as against such children, by the terms of said proviso, under the circumstances therein set out, reduced to a life estate. By the latter decision, it was held that such a widow took her share in fee simple, and that the child or children of the former marriage or their descendants had no interest whatever in such share during her lifetime, but only an expectancy to take the same as her forced heirs at her death. This is now the settled construction of said proviso. Johnson v. Johnson (1899), 153 Ind. 60, 54 N.E. 124; Bateman v. Bennett (1903), 31 Ind.App. 277, 67 N.E. 713. The law in this respect, however, has since been changed by statute. See § 3019 Burns 1914, Acts 1901 p. 554.
It is argued by appellees that the construction placed on said proviso by Martindale v. Martindale supra, and cases following it had become a law of property in this State, and that from the fact that the testator made the will and that he died before the decision of Utterback v. Terhune, supra, he must be presumed to have made the will in the light of said former decisions, and that the rights of the parties should be determined by the application of the principles of such decisions; that while the widow made her election after the decision of Utterback v. Terhune, supra, such election related back to the death of her husband, and that, therefore, the rights of the widow and those claiming under her, should be measured by said former decisions. Appellees rely on such cases as Haskett v. Maxey (1893), 134 Ind. 182, 33 N.E. 358, 19 L.R.A. 379; Burget v. Merritt (1900), 155 Ind. 143, 57 N.E. 714; and Thompson v. Henry (1899), 153 Ind. 56, 54 N.E. 109. Appellants, while conceding the soundness of such decisions, deny their application, and argue that from the fact that the widow made her election after the decision of Utterback v. Terhune, supra, she is chargeable with knowledge of such decision, and that, therefore, the later decisions govern her. We do not find it necessary to determine the merits of such controversy. If appellees are right, and the former line of decisions is applicable here, then it is a plain proposition that since under said decisions the widow's estate in the lands under the laws of descent would have been only for the period of her own life, said will did not create in her the same estate in lands as the statutes of descent in the absence of provision by will, and as a consequence it must be said, on this assumption, that the estate devised to her was a different estate or interest from what ...
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