Haugh v. Smelser
| Decision Date | 27 January 1903 |
| Docket Number | 4,275 |
| Parties | HAUGH ET AL. v. SMELSER |
| Court | Indiana Appellate Court |
Rehearing denied February 27, 1903, Reported at: 31 Ind.App 571 at 573.
Transfer denied June 24, 1903.
Petition for written opinion denied November 4, 1903.
From Rush Circuit Court; Douglas Morris, Judge.
Partition proceeding by Mary H. Haugh and others against Maria P. Smelser and others. From a judgment for defendants on demurrer to complaint, the plaintiffs and all defendants, except Maria P. Smelser, appeal.
Affirmed.
E. P. Ferris, W. W. Spencer, F. J. Hall and E. W. Spencer, for appellants.
B. F. Miller and Reuben Conner, for appellee.
Jesse W. Smelser died intestate the owner of real estate in Rush county of the value of $ 30,000. He left surviving him the appellee Maria P. Smelser, his widow, who was a third wife. He died childless and neither his father nor mother survived him. The appellants--there being a large number of them--are surviving brothers and sisters or descendants of brothers and sisters of the said decedent. A number of the appellants brought an action against Maria P. Smelser, as widow, and others for partition of the real estate owned by the decedent at his death, upon the theory that the appellee was entitled to the undivided one-third of the real estate as widow, and that the plaintiffs below and all the defendants except Maria P. were entitled to have set off to them the undivided two-thirds as the brothers and sisters and their descendants of said Jesse. A demurrer by appellee for want of facts was sustained to the complaint, and the only question presented by this appeal is the correctness of that ruling. All the plaintiffs and all the defendants below except Maria P. Smelser are joined as appellants.
It is not necessary to set out the complaint, for the statement above fully presents the question for decision, and that question is this: Where a husband dies intestate and childless, the owner of real estate, leaving a widow, and without father or mother surviving, but brothers and sisters or their descendants, surviving, does the widow take the entire estate? This question is answered by the statute and a long line of decisions in this State. Section 2651 Burns 1901 is as follows: "If a husband or wife die intestate, leaving no child and no father or mother, the whole of his or her property, real and personal, shall go to the...
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