Dillman v. Fulwider

• Decision Date: 30 April 1914
• Docket Number: No. 8323.,8323.
• Citation: 105 N.E. 124,57 Ind.App. 632
• Parties: DILLMAN et al. v. FULWIDER et al.
• Court: Indiana Appellate Court

57 Ind.App. 632

105 N.E. 124

DILLMAN et al.

v.FULWIDER et al.

No. 8323.

Appellate Court of Indiana, Division No. 2.

April 30, 1914.

Appeal from Circuit Court, Monroe County; James B. Wilson, Judge.

Action by James L. Dillman and another against Oscar Fulwider and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Brooks & Brooks, of Bedford, for appellants. Miers & Corr, W. E. Hottel, and Batman, Miller & Blair, all of Bloomington, for appellees.

CALDWELL, J.

The following is the substance of appellants' complaint: That on the 29th day of March, 1881, David C. Dillman died testate in Monroe county, Ind., the owner in fee of 31 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 seised or possessed, which included the real estate hereinbefore described;” that by said 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 said will was duly probated on the 2d day of April, 1881, and letters were regularly issued to Jonathan M. May, named in the will as one of the executors thereof; that on the 22d day of January, 1883, said widow, by proper steps, elected to take under said will; that “the aforesaid will empowered and authorized the executors named therein, to wit, James L. Dillman and Jonathan M. May, to sell by private sale, in such manner and upon such terms or credit or otherwise as they might deem or think proper, the property real and personal of said decedent.” Facts are averred to the effect that said Jonathan M. May, as such executor, regularly sold to Henry F. Dillman all the lands of which said testator died the owner, consisting of 167 acres, and that said executor reported said sale to the court at the February term, 1883, which report was approved and confirmed, and a deed ordered; that on the 24th day of February, 1883, said executor, pursuant to said order, executed and delivered to said purchaser a deed of conveyance for all said lands, including said 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 said purchaser having paid said executor the purchase price of said land, said executor paid said widow the one-third thereof, and applied the balance in payment of the costs and expenses of administration and the debts of said decedent; that no notice of any kind was given appellants of said proceedings to sell lands, and they received no part of said purchase price; the said 31acre tract has been conveyed from said 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 said Nancy A. Dillman died intestate on the 3d day of April, 1911; that appellants at no time conveyed said lands or any part thereof; that at the death of said Nancy A. Dillman appellants became seised in fee simple of the undivided one-third of said 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 said tract held by it, and alleged to have been executed by Fulwider. Prayer for partition, the sale of said tract as undivisible, and distribution of proceeds.

Appellees' demurrer to said 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 said demurrer.

[1] 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 said will, rather than as widow under the statutes of descent. Appellants argue, however, that by the terms of said will said 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 said will, and hence it is contended that said 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, 120 Ind. 333, 22. N. E. 310;McClanahan v. Williams, 136 Ind. 30, 35 N. E. 897;Stilwell v. Knapper, 69 Ind. 558, 35 Am. Rep. 24. Such rule is applicable as to the widow. Thompson v. Turner, 173 Ind. 593, 597, 89 N. E. 314, Ann. Cas. 1912A, 740;Denny v. Denny, 123 Ind. 240, 23 N. E. 519.

[2] We proceed to determine whether or not said will purports to give to said 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 said will there was devised to her, “in lieu of her interest in said lands and personal property, one-third of all his estate, real and personal,” etc. It is conceded by both appellants and appellees that said will, under said averment, created in said widow an estate in fee simple absolute in one-third of all the lands of which said testator died seised, if it be determined that said widow took under and by virtue of said will. We therefore proceed to ascertain the nature, quantity, and quality of the estate in said lands that would have descended to said widow, as such, in the absence of any provision for her by will. The statutes that bear on this question are section 2483 and the the proviso to section 2487, R. S. 1881. The former 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,” 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, 10 Ind. 566, decided in 1858, and continuing down to Utterback v. Terhune, 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, 153 Ind. 60, 54 N. E. 124;Bateman v. Bennett, 31 Ind. App. 277, 67 N. E. 713. The law in this respect, however, has since been changed by statute. See section 3019, R. S. 1908.

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 said testator made said will, and that he died before the decision of Utterback v. Terhune, supra, he must be presumed to have made said 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 said 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 form or decisions. Appellees rely on such cases as Haskett v. Maxey, 134 Ind. 182, 33 N. E. 358, 19 L. R. A. 379;Burget v. Merritt, 155 Ind. 143, 57 N. E. 714; and Thompson v. Henry, 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 said widow made her said 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.

[3] If appellees are right, and the former line of decisions is applicable here, then it is a plain proposition that, since, under said decisions, said widow's estate in said 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 said assumption, that the estate devised to her was a different estate or interest from what she would have taken by law. It would follow that said widow's rights must be measured by the will, and that appellants must fail. We...