Graham v. Sinclair
| Decision Date | 30 April 1925 |
| Docket Number | No. 12297.,12297. |
| Parties | GRAHAM v. SINCLAIR et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sullivan County; Charles D. Hunt, Special Judge.
Action by John T. Sinclair and others against Cora V. Graham. Judgment for plaintiffs, and defendant appeals. Reversed, with instruction.
Hays & Hays, of Sullivan, for appellant.
A. G. McNabb, of Sullivan, for appellees.
Action by appellees for partition of real estate. There was judgment in their favor from which this appeal. The error presented that we need to consider is that the court erred in each of its conclusions of law. It appears by the special finding of facts that Austin Sinclair and appellant were duly married on February 28, 1905, and lived together as husband and wife until in September, 1921. At and before their marriage said Sinclair was the owner of the real estate here involved.
On June 18, 1907, he and appellant joined in a deed conveying the real estate to one Schroeder, trustee, the same to be reconveyed to the said Sinclair and his wife, which deed contains the following habendum clause:
“This trustee is created for the purpose of reconveying the above-described real estate to Austin Sinclair and Cora V. Sinclair, husband and wife, during the life or period of their natural lives and after the death of the survivor to the children of said Austin Sinclair.”
Pursuant to said trust the said Schroeder did, on June 18, 1907, convey to the said Sinclairs, as husband and wife, said real estate, which said deed contains the following habendum clause:
“This conveyance is made to Austin Sinclair and Cora Sinclair, husband and wife, to have and to hold for and during the term and period of their natural lives and the term and period of the natural life of the survivor of them, and at the death of the survivor of them, then in fee simple to the children of Austin Sinclair.”
At the September term, 1921, of the Sullivan circuit court, appellant filed an action for divorce and alimony against Sinclair. But he, upon cross-complaint filed in said cause, obtained a divorce from appellant without alimony to her.
Sinclair died testate in Sullivan county, Ind., August 2, 1922, at the age of 85 years, unmarried.
Appellees herein are the children of the said Sinclair by a former marriage. No children were born to him and appellant. She is now 61 years of age.
As conclusions of law upon the facts the court stated: (1) That appellees are the owners as tenants in common of said real estate subject to the life estate of appellant in an undivided one-half thereof; and (2) that they are entitled to partition thereof as prayed for in their complaint.
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