Gwaltney v. Gwaltney

• Decision Date: 27 May 1889
• Docket Number: 13,742
• Citation: 21 N.E. 552,119 Ind. 144
• Parties: Gwaltney v. Gwaltney
• Court: Indiana Supreme Court

21 N.E. 552

119 Ind. 144

Gwaltney v. Gwaltney

No. 13,742

Supreme Court of Indiana

May 27, 1889

From the Gibson Circuit Court.

Judgment affirmed, with costs.

C. A Buskirk and H. A. Yeager, for appellant.

J. E McCullough and J. H. Miller, for appellee.

OPINION

Mitchell, J.

Amariah Gwaltney died intestate, in Gibson county, in January, 1885. He was the owner of a considerable body of real estate, and left, as his only heirs, Nancy Gwaltney, his childless widow, and James H. Gwaltney, his son by a former marriage. In a partition proceeding, to which the widow and son were parties, a tract of one hundred acres of the land of which the intestate died seized was set off to the widow. This was a proceeding instituted by the son to enjoin his stepmother from removing timber and committing waste upon the land so set off to her.

The question presented relates to the nature of the estate which the law casts upon a childless second wife, upon the death of her husband, in virtue of her marriage, and whether or not the husband's children by a former marriage have such an interest in the land which descends to her as entitles them to enjoin the widow from removing timber therefrom or committing waste thereon. It is scarcely necessary to say the present case is not affected by the act of the General Assembly which took effect March 11th, 1889. Acts of 1889, p. 430. Section 2483, R. S. 1881, and the proviso to section 2487, control the decision of both questions. These statutory provisions are to the effect that, upon the death of a husband leaving a widow, one-third of his real estate shall descend to her in fee simple; provided, that if a man marry a second or other subsequent wife, and has by her no child or children, but has a child or children alive by a previous wife, the land which at his death descends to such wife shall, at her death, descend to his children.

It is well established that a remainder-man, reversioner, or other person having an existing interest in land, may invoke the aid of a court of equity to restrain the commission of acts of waste, such as removing valuable timber from the freehold, where the timber constitutes an important element in the value of the land. Ordinarily a reversioner or remainder-man must have the legal title, or at least a present existing vested right, in remainder or reversion, in order that he may maintain the action. Wilson v. Galey, 103 Ind. 257, 2 N.E. 736; Gillett v. Treganza, 13 Wis. 472; Hughlett v. Harris, 1 Del. Ch. 349 (12 Am. Dec. 104); Miles v. Miles, 32 N.H. 147 (64 Am. Dec. 362).

One thus seized of an estate, in remainder or reversion, may maintain an action for waste, or he may resort to a remedy by injunction in a court of equity for the staying of threatened acts of waste, notwithstanding the intervention of an estate for life or years. Section 287, R. S. 1884; Robertson v. Meadors, 73 Ind. 43, and cases cited.

The difficulty which confronts the appellant in the present case is, he is neither a remainder-man nor reversioner, nor has he any interest whatever in the land, except a mere expectancy that he may inherit it from his stepmother in case he survives her. Thus the statutes above mentioned have been construed again and again, until it must now be considered as settled.

The estate which a widow takes in the real estate of her husband is a fee simple, by the very words of the statute, which applies alike whether she be a...