Herbert v. Rupertus
| Decision Date | 30 October 1903 |
| Docket Number | 4,468 |
| Citation | 68 N.E. 598,31 Ind.App. 553 |
| Parties | HERBERT v. RUPERTUS ET AL |
| Court | Indiana Appellate Court |
From Vanderburgh Circuit Court; A. C. Hawkins, Judge.
Suit by Walton N. Wheeler, administrator with will annexed of the estate of Anna N. Slinghart, deceased, against Peter Herbert and others to sell real estate to pay debts. From a judgment for plaintiff, defendant Herbert appeals.
Affirmed.
W. W Ireland and William Reister, for appellant.
S. R Hornbrook and W. M. Wheeler, for appellees.
The special finding herein shows the following facts: Appellee Wheeler is the administrator with the will annexed of Anna M. Slinghart, who departed this life August 15, 1901, testate, the owner of the west half of lot six, block eighty-one, in the city of Evansville. Fred L. Slinghart was the husband of the deceased, and they were living together at the time of her death. Within ninety days after the will of said Anna M. was admitted to probate, the husband duly elected to take under the law. On October 25, 1901, he executed a warranty deed to appellant for the one-third part of the said real estate. Thereafter said administrator filed his petition to sell said real estate, making appellant a party, and it was agreed by all the parties to the proceeding that the sale be made, and that the right of each one to assert his claim to any portion of the proceeds be postponed until such sale was made and the proceeds thereof in the hands of the administrator. Thereafter the property was sold for $ 810, sale approved, and cause continued in order to adjudicate the rights of the respective parties to the fund. There was a mortgage lien against said real estate of $ 371.25, such mortgage having been executed by Anna M. and Fred Slinghart, who were husband and wife at the time. Two-thirds of the proceeds of the sale is sufficient to pay said mortgage. There are no claims filed, contracted before the marriage of said Anna M., who had no other property. The real estate was occupied by her and her husband as a home. The mortgage was executed to secure a loan of money which was used to pay living expenses and the expenses of decedent's last illness, she being then sick, and other incidental expenses, all of which were for family necessaries, the husband receiving the benefit of said loan by the payment of such debts and expenses. The notes given therefor were not signed by the husband. The mortgage contained a clause as follows: "And the mortgagor expressly agrees to pay the sum of money above secured," etc. Such mortgage was duly recorded eight months prior to the time that the deed was executed to appellant, who bought with full knowledge thereof. Claims against said estate are pending to the amount of $ 275, and Fred Slinghart is an insolvent nonresident.
Upon these facts the court stated as conclusions of law that, as between the parties, the mortgage debt was the debt of the husband; that the real estate appellant acquired from the husband was liable for its proportion of the mortgage debt. From a judgment in accordance with such conclusions the appeal is taken.
Upon the death of the wife testate or intestate one-third of her real estate descended to the husband, subject to its proportion of her debts contracted before marriage. § 2642 Burns 1901. The estate thus acquired by him is not subject to the payment of the general debts of the deceased wife. Kemph v. Belknap, 15 Ind.App. 77, 43 N.E. 891; Roach v. White, 94 Ind. 510. The right conferred by the statute is absolute, except when it has been waived by agreement, or when the husband has estopped himself from...
To continue reading
Request your trial