Griffis v. First Nat. Bank of Connersville

• Decision Date: 28 May 1907
• Docket Number: No. 21,052.,21,052.
• Citation: 168 Ind. 546,81 N.E. 490
• Parties: GRIFFIS et al. v. FIRST NAT. BANK OF CONNERSVILLE et al.
• Court: Indiana Supreme Court

168 Ind. 546

81 N.E. 490

GRIFFIS et al.

v.FIRST NAT. BANK OF CONNERSVILLE et al.

No. 21,052.

Supreme Court of Indiana.

May 28, 1907.

Appeal from Circuit Court, Rush County; Will M. Sparks, Judge.

Action by the First National Bank of Connersville and others against John G. Griffis and others. Judgment for plaintiffs, and defendants appeal. Transferred from Appellate Court under Burns' Ann. St. 1901, § 1337j. Affirmed.

See 79 N. E. 230.

Forkner & Forkner, for appellants. Florea & Broaddus, for appellees.

HADLEY, C. J.

In May, 1890, Theodore L. Griffis died intestate as to his real property, leaving surviving him Kathleen, his childless second wife, and two sons, John and Robert, by a former marriage. In August, 1890, the widow executed to her stepsons her quitclaim deed to all her interest in the land inherited from her deceased husband. The decedent had been engaged in the mercantile business for many years, and after his death the stepsons, without administration upon the estate, continued the business until April 25, 1898, when they failed, and went through bankruptcy. Prior to the failure, to wit, in December, 1896, the stepsons executed a warranty mortgage on the real estate conveyed to them by their stepmother to Mary J. Catlin as security for a note, and to save her harmless as the surety of the mortgagors on notes for several thousand dollars, payable to the appellees. On the day of the failure of the stepsons, to wit, April 25, 1898, one Mount was appointed administrator of the estate of said Theodore L. Griffis, and, on his application to sell the real estate to pay the debts of the decedent, it was found that the widow's portion, being one-fourth as against creditors, and then owned by the stepsons, and by them mortgaged as aforesaid, could not be set off without damage to the whole, whereupon the whole estate was ordered sold, discharged of all liens, said liens to follow and attach to the proceeds in the hands of the administrator. Appellees were not parties to the land sale proceedings, and they bring this action to recover one-fourth of the proceeds in the hands of the administrator, basing their right of action on the doctrine of substitution, and subrogation under the Catlin mortgage. There was a special finding and conclusions of law in favor of the appellees. The questions involved, though variously presented, arise appropriately upon exceptions to conclusions of law.

The real question for decision is: Can the stepsons, having received from their stepmother, who was the childless second wife of their deceased father, a general quitclaim conveyance of lands inherited from her said husband, and executed thereon a warranty mortgage for full value, assert any right or interest in the land or fund arising therefrom adversely to the mortgagee? It is a familiar principle that the rights of heirs are determined by the statutes of descent in force at the time of the ancestor's death. The statute in force at the time of Theodore Griffis' death (1890) was as follows: “If a man marry a second or 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.” Section 2487, Rev. St. 1881. This statute casts upon the childless wife a vested estate in fee, as against a descendant of her deceased husband who should be living at the time of her death. It was an estate in which the children of a former wife took no vested interest, and no right beyond a mere expectancy, determinable upon the death of the childless widow. During the life of the latter her expectant heir is so barren of interest in his stepmother's inheritance that he cannot maintain a suit to enjoin her from the commission of waste. Gwaltney v. Gwaltney, 119 Ind. 144, 21 N. E. 552. She may also sell timber, gravel, or stone, or remove buildings from the premises, without interference from her stepchildren, because they have no present interest in the estate, and will never have unless they survive the widow. Johnson v. Johnson, 153 Ind. 60, 54 N. E. 124. In such cases stepchildren are not bound by a judgment ordering their supposed interest sold. Erwin v. Garner, 108 Ind. 488, 9 N. E. 417. Nor by a conveyance made by them or their guardian during the life of the widow. Bryan v. Uland, 101 Ind. 478, 1 N. E. 52. The rule suspending the power of alienation in the childless second wife applies only to the descendants of the husband by a former marriage, and is operative only during the life, or lives, of such descendants. Upon the failure of such descendants the power of alienation becomes in the childless second wife absolute, and the estate will descend to her heirs, as in ordinary cases. As was said in Johnson v. Johnson, supra: “This has been the settled law under our statutes of descent since May 6, 1853, until the taking effect of the act of 1899 (Acts 1899, p. 131, c. 99). Section 2644a, Burns' Ann. St. 1901. The latter act prescribes a different rule of descent in such cases, giving to the childless second wife a life estate only, with remainder in fee to the husband's descendants by a former marriage. Kathleen Griffis, the childless second wife, is still living. It follows, therefore, from what has been said that John and Robert Griffis had no immediate interest in the land when they executed the mortgage to Mary Catlin in 1896, except such as was conveyed to them by their stepmother by quitclaim deed in August, 1890. The widow, however, could and did convey to them a good title as against her own heirs, and her deed to her stepsons was valid and...