Johnson v. Johnson

• Decision Date: 15 June 1899
• Citation: 54 N.E. 124,153 Ind. 60
• Parties: JOHNSON et al. v. JOHNSON et al.
• Court: Indiana Supreme Court

153 Ind. 60

54 N.E. 124

JOHNSON et al.

v.JOHNSON et al.

Supreme Court of Indiana.

June 15, 1899.

Appeal from superior court, Marion county; L. M. Harvey, Judge.

Action by Moses T. Johnson, trustee, and others against Sarah P. Johnson and others. From a judgment for defendants, plaintiffs appeal. Affirmed.Harding & Hovey, for appellants. Ritter & Baker, for appellees.

MONKS, J.

The errors assigned call in question the conclusions of law. The facts found necessary to determine the questions presented are substantially as follows: Henry B. Johnson died intestate in 1867, the owner in fee simple of certain real estate in Marion county, Ind., leaving, surviving as his only heirs at law, Sarah P. Johnson, his second wife, by whom he had no child or children, and Moses Johnson and Mary Belle Johnson, his children by a former marriage. In 1888 said Sarah P. Johnson received from a firm of attorneys in Indianapolis an opinion in writing that, under the statutes of Indiana, she was entitled to one-third part of said real estate in fee simple, and that each of the two children also inherited one-third part, so that Mrs. Johnson and the two children had equal interests in fee simple in said real estate. Mrs. Johnson communicated the information to the children, who were then each over 21 years of age. From that time forward all the parties interested in said real estate were of the belief, on account of the opinion of said attorneys, that Mrs. Johnson took a fee-simple title in the undivided one-third of all of said real estate, with the full power to sell the same, and, if unsold at her death, the same would descend to the heirs of her own blood, if she died intestate, and, if testate, would go to her devisee; and they had no knowledge that, under the statutes of Indiana, said children of Henry B. Johnson were her forced heirs, and the real estate which descended to her from said Henry B. Johnson would at her death descend to said children. In 1893 said real estate was sold and conveyed by said Sarah P. Johnson and said children to William Haerle, who paid a part of said purchase money in cash, and gave nine promissory notes, secured by a mortgage on said real estate, for the residue. One-third of the cash payment received was paid to Mrs. Johnson, and the remainder to the other parties interested. The money received on the notes paid before the commencement of this action, except the fifth, was divided in the same proportion. When the fifth note was paid, one-third of the amount received in payment thereof was deposited in bank, to be held until it was judicially determined as to whom the same belonged and the interests of the parties hereto adjudicated. Said Sarah P. Johnson has no property other than her interest in the estate of her deceased husband, Henry B. Johnson. All the appellants to this action have resided in the state of Pennsylvania for 10 years last past, and have never resided in the state of Indiana. At the time said real estate was sold and conveyed, the grantors therein were mistaken as to the statutory law of Indiana, which mistake was common to all the parties hereto, and was attributable to the mistake of the Indianapolis attorneys of the appellee Sarah P. Johnson, in furnishing her an opinion as to the law of descent of the state, and to the fact that no other person interested in said property made any inquiry in reference to said matter, or endeavored in any way to ascertain the law of Indiana. Said other parties were not in any way prevented from ascertaining the law of Indiana, or from making inquiry in reference thereto, except by the fact that such information was procured by her and was believed by her to be correct, and was communicated to said other persons, who accepted the same as correct.

The conclusions of law stated were substantially as follows: (1) That appellants should take nothing by their suit, and should pay the costs. (2) That Sarah P. Johnson was and is the owner of, and entitled to receive, one-third of the purchase money paid and to be paid for said real estate, and appellants have no valid claim, title, or interest in or to the same. (3) That appellants have no right of present control of said funds and choses in action. The court states no conclusion of law which is to be taken as determining the interest, if any, of any of appellants in said funds and choses in action after the death of said Sarah P. Johnson. The judgment rendered by the court followed the conclusions of law.

Appellants insist that, upon the facts found, the conclusions of law should have been stated so as to entitle them to a decree that the one-third of the purchase money for said real estate claimed by said Sarah P. Johnson be placed in the hands of a receiver or trustee, and the interest thereon, less the expense, be paid to her during her life, and at her death the principal be paid to the children of Henry B. Johnson or their descendants the same as the land, if not sold, would have descended under section 2487, Rev. St. 1881.

Section 2487, Rev. St. 1881, upon which appellants rely, provides “that if a man marry a second or other subsequent wife, and has by her no children, and dies leaving 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 will be observed that this section does not fix the estate or interest which the second or subsequent childless wife takes in the real estate of her deceased husband. That is fixed by sections 2640, 2643, 2646, Burns' Rev. St. 1894 (sections 2483, 2486, 2489, Rev. St. 1881). The estate given a widow by either of said sections in the lands of her deceased husband is fee simple, regardless of whether she is a first, second, or other subsequent wife, and regardless of whether she has children by such husband. Byrum v. Henderson, 151 Ind. 102, 104-106, 51 N. E. 94, and cases cited. It is settled law that, under our statute of descents,from May 6, 1853, when the same was in force, until the taking effect of the act of 1899 (Acts 1899, pp. 131, 132), a second or subsequent childless wife took a fee simple in the lands of her deceased husband, and that the child or children of the previous marriage or their descendants had no interest in the said real estate which descended to her, but only an expectancy to take the same as her forced heirs at her death, under section 2487, supra. Byrum v. Henderson, 151 Ind. 104-107, 51 N. E. 94, and cases cited; Habig v. Dodge, 127 Ind. 31, 34, 35, 25 N. E. 182, and cases cited; Gwaltney v. Gwaltney, 119 Ind. 144, 21 N. E. 552;Thompson v. Henry (this term) 54 N. E. 109;Helt v. Helt (Ind. Sup.) 52 N. E. 699. Therefore, if a husband died leaving a childless second or subsequent wife as his widow, and leaving a child or children or their descendants by a former marriage surviving him, and such child or children or their descendants should die before such widow, then there would be no child or children of the former marriage or their descendants living at the death of such widow to take as her...