Hinton v. Whittaker

• Decision Date: 07 April 1885
• Docket Number: 11,036
• Citation: 101 Ind. 344
• Parties: Hinton v. Whittaker et al
• Court: Indiana Supreme Court

101 Ind. 344

Hinton v. Whittaker et al

No. 11,036

Supreme Court of Indiana

April 7, 1885

From the Howard Circuit Court.

The judgment is affirmed, with costs.

J. C Blacklidge and W. E. Blacklidge, for appellant.

J. W Kern, B. F. Harness and F. Cooper, for appellees.

OPINION

Howk J.

This suit was commenced by the appellant Hinton, as sole plaintiff, against the appellees Whittaker and others, as defendants, to obtain the partition of certain real estate in Howard county. In his complaint Hinton alleged that he was the owner in fee simple of an undivided one-third part, and that the appellees in certain specified shares were the owners in fee simple of the undivided two-thirds part of the real estate described, as tenants in common; and he asked judgment that his share of such real estate be set off to him in severalty, and for other proper relief. The cause was put at issue and tried by a jury, and a verdict was returned for the appellees, the defendants below, and over the appellant's motion for a new trial the court adjudged that he take nothing by his suit, and that the appellees recover of him their costs.

The first error of which complaint is made in argument by the appellant's counsel is the overruling of the demurrer to the second paragraph of the appellees' answer. In this paragraph of their answer, the appellees alleged that the appellant ought not to recover in this action, because he owned no interest, legal or equitable, in the real estate described in his complaint; that the only fact upon which he based his right to recover was that he was the husband of Mary W. Hinton, who died intestate on the day of -----, 1882, seized in fee simple of such real estate, leaving the appellees, her children and grandchildren, surviving her; that the appellees were descendants of Mary W. Hinton in virtue of her first marriage; that on the 19th day of December, 1872, the appellant and Mary W. Hinton were married, and lived together as husband and wife until the 15th day of October, 1881, when the appellant, then the husband of Mary W. Hinton as aforesaid, without any just cause whatever, abandoned her, his wife, leaving her in a feeble, destitute and helpless condition, and remained away from her until her death as aforesaid, and that he did not make, nor cause to be made, suitable provision, or any provision for her, his wife, before the time he abandoned her as aforesaid, and did not at any time, or in any manner, make for her or afford to her any provision for her maintenance, care or support after the 15th day of October, 1881, when he so abandoned her. Wherefore the appellees said that the appellant owned no part of the real estate aforesaid, and they prayed judgment for their costs, etc.

It is manifest from the facts stated therein, that this paragraph of answer was framed and prepared to present the case provided for in section 2498, R. S. 1881, in force since May 6th, 1853. This section reads as follows: "If a husband shall abandon his wife without just cause, failing to make suitable provision for her, or for his children, if any, by her, he shall take no part of her estate."

The second paragraph of answer, the substance of which we have given, states clearly and explicitly the appellant's abandonment of his wife without just cause, and his failure to make suitable provision for her. This was sufficient to show that, under our statute of descents, the appellant as husband could take no part of his deceased wife's estate. Dye v. Davis, 65 Ind. 474. The paragraph of answer closely follows the language of the section of the statute above quoted, and states the precise case wherein the statute declares that the husband "shall take no part" of his deceased wife's estate. The court did not err, we think, in overruling the appellant's demurrer to the second paragraph of appellees' answer.

The only other error assigned by the appellant is the overruling of his motion for a new trial. Among the causes assigned by ...