Fleenor v. Driskill

• Decision Date: 19 September 1884
• Docket Number: 10,749
• Parties: Fleenor et al. v. Driskill et al
• Court: Indiana Supreme Court

97 Ind. 27

Fleenor et al. v. Driskill et al

No. 10,749

Supreme Court of Indiana

September 19, 1884

From the Washington Circuit Court.

The judgment is reversed, with costs, and the cause remanded with instructions to the circuit court to state conclusions of law, and to enter final judgment, in accordance with the views expressed in this opinion.

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

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

OPINION

Niblack J.

On the 2d day of January, 1850, John Fleenor executed and published his last will and testament, the disposing part of which was as follows:

"Secondly. I will and bequeath to Henry Fleenor, Abraham Fleenor, Sarah Jane and Martha Fleenor, the children of Betsey Hensley, from whom I was divorced, the sum of one dollar each.

"Thirdly. I will and bequeath to my wife, Rebecca, one quarter section of land, to be selected by her at her own free choice and option from any of the lands that I may die seized of, to be chosen by her within one year after my death, for her support and maintenance, and that of the children she has or may have by me, during her life, and, at her death, the same I will and bequeath to the said children, share and share alike, and their heirs and assigns forever. This bequest is made in lieu of dower to my real estate. * * * But in case she shall not choose to accept of this bequest in lieu of dower in my real estate, then I give and bequeath said quarter section of land to the said children, without any limitation or intervening estate, absolutely forever, share and share alike; and furthermore, if my said wife, Rebecca, shall neglect to choose and designate such quarter section of land as above provided for, I authorize and request my executors, hereinafter named, to do it in behalf of said children, and their choice shall bind.

"Fourthly. I also give and bequeath to my said wife, Rebecca, all the household furniture I may be possessed of at my death, absolutely, together with the provisions on hand for the use of my family at my death.

"Fifthly. As to the rest, residue and remainder of my estate, real or personal, I will and direct that it be divided equally between my other children not hereinbefore named or alluded to, and to the children and heirs of those who, being dead, were in life my children, the same share that the parent, if alive at my death, would be entitled to, and to their heirs and assigns forever.

"Sixthly. I furthermore will and bequeath, order and direct, that if, in the opinion of my executors, the (quarter) section of land hereby to be designated and set off to the children of my wife, Rebecca, by me, will not afford them equal shares with my other devisees, they shall cause to be set off to them as much of my land as will make them equal shares in my estate."

On the 19th day of September, 1853, the said John Fleenor died, leaving his will, executed and published as above, in full force, which, on the 22d day of the same month, was duly proven and admitted to probate. Within a few days thereafter Rebecca Fleenor, the widow, elected to, and gave notice that she would, take her share of the testator's real estate under the statute, and not under the will. The decedent was three times married, and, in that way, left three sets of children, constituting, in the aggregate, a numerous family, surviving him. The children which he had by the above named Rebecca, his last wife, and who survived him, were Rhoda Homocker, Henry Fleenor, Martha E. Driskill, William Fleenor and Francis M. Fleenor. The decedent died seized also of several tracts of land, covering together an area of near, if not quite, one thousand acres.

On the 23d day of November, 1853, Nicholas Fleenor, one of the decedent's children by his first wife, filed his petition in the common pleas court of Washington county, praying that partition might be made of the lands of which his said father had died seized, and making the widow and the remaining children and heirs at law of the decedent defendants to answer the petition.

Rebecca Fleenor appeared to the action and answered, reiterating her refusal to take under the will, averring title in herself, as such widow, to one undivided third part of the land described in the petition, and uniting with the petitioner in his demand for partition. Some of the children, being minors, answered by guardian ad litem, and the remaining defendants made default. No reply was filed to the answer of Rebecca Fleenor.

At a hearing of the cause, on the 3d day of April, 1854, the common pleas court made a finding that John Fleenor, the testator, had died seized of the land referred to in the petition; that the said Rebecca Fleenor was his widow, and had refused to take under his will; that the said Rebecca had neglected to select the quarter section of land devised to her children, and that the executors appointed by the will had refused to qualify as such executors; that, in continuing, the court said: "And it is found by the court that said Rebecca Fleenor, the widow of said deceased, is justly entitled to the one equal fourth part of said lands heretofore described." The court then proceeded to make a finding as to, and to define the interests of, all the other parties, concluding that partition ought to be made between the parties according to their said respective interests, and decreeing partition accordingly.

At the same term, the commissioners appointed to make partition made their report to the court, amongst other things, assigning and setting over to the said Rebecca Fleenor, one-fourth of the lands mentioned in the petition and decree of partition, to wit, the southwest quarter of section twenty-nine (29), in township three (3) north, of range four (4) east, with a yard running from the house forty feet east and sixty feet north and south, and also the right to use the water from the spring east of the house on said quarter section during her life; also, fifty-two acres off of the north end of the northwest quarter of section thirty-two (32) in the same township and range. The report of the commissioners, which also set apart a tract of land to the five children of the said Rebecca herein above named, was in all things approved and confirmed, the court adding as follows: "And it is ordered and decreed by the court that said widow have and enjoy the premises set apart to her for and during her natural life." Rebecca Fleenor, the widow referred to in this decree, went into the immediate possession of the lands assigned and set over to her as above set forth, and so continued until the time of her death as hereinafter stated, remaining sole and unmarried after the death of her then late husband, John Fleenor.

Previous to the month of November, 1863, Francis M. Fleenor died unmarried and without issue, leaving his mother...