Jones v. Jones

• Decision Date: 08 October 1925
• Docket Number: 12,229
• Citation: 149 N.E. 108,84 Ind.App. 176
• Parties: JONES ET AL. v. JONES ET AL
• Court: Indiana Appellate Court

149 N.E. 108

84 Ind.App. 176

JONES ET AL. v. JONES ET AL

No. 12,229

Court of Appeals of Indiana

October 8, 1925

Rehearing denied January 6, 1926, Reported at: 84 Ind.App 176 at 183. Transfer denied February 16, 1926.

From Hendricks Circuit Court; Zimri E. Dougan, Judge.

Action in partition by Ernest E. Jones and others against Lawrence H. Jones and others. From a judgment for plaintiffs, the defendants appeal.

Reversed.

George W. Galvin, for appellants.

Lew Wallace, for appellees.

OPINION

NICHOLS, J.

Action by appellees against appellants to partition certain lands in Marion county, owned by decedent Mary M. Jones and devised by her will.

The complaint is in the usual form of complaints for partition under the averments of which, appellee Ernest E. Jones claims to be the owner of the undivided one-half of the real estate involved in fee simple, and demands the sale of the same by a commissioner, and the distribution of the proceeds of sale.

Appellants each answered by a denial, and by a second paragraph of answer setting up the will of the said Mary M. Jones, deceased, which, so far as here involved, hereinafter appears in the substance of the special finding of facts, and claiming that thereunder appellees nor either of them have any interest in said real estate that would entitle them to partition, and that the only interest that appellee Ernest E. Jones has in said real estate is an interest jointly with appellant Helen M. Jones as remainderman after the death of appellant Lawrence H. Jones.

Appellees replied to said second paragraph of answer by denial, and by second paragraph setting up an election by John M. Jones, the husband of said testatrix, to take under the law, and claiming that by the direct and natural effect of such election, the provisions of the will hereinafter appearing for the occupancy of the residence property by the husband John M. Jones and appellant Lawrence H. Jones was rendered nugatory and of no effect, and that said residence property, which is included in the real estate described in the complaint, ceased to belong to appellee Ernest E. Jones and appellant Helen M. Jones, under the terms of the will, and that said husband became, until his death, the owner of the undivided one-third of said real estate under the law of descent, one-half of which undivided interest, upon the death of said husband intestate, by the law of descent became the property of appellee Ernest E. Jones, and the other half the property of one or the other of appellants as the court might determine, and that, as to the undivided two-thirds of said real estate, one-half thereof, upon such election, became the property of appellee Ernest E. Jones, and the other one-half the property of one or the other of appellants as the court might determine. In other words, as we interpret the reply, the will was entirely abrogated by the election of the husband to take under the law.

A demurrer by each of appellants to this reply was overruled. On the issues formed, and after hearing the evidence, the court specially found the following facts and stated its conclusions of law:

On August 4, 1917, Mary M. Jones was the owner in fee simple of the real estate involved.

On said day, while owning said real estate in fee simple, said Mary M. Jones died testate, leaving her surviving John M. Jones, her husband, Lawrence H. Jones, her son, Helen M. Jones, the daughter of said Lawrence H., and Ernest E. Jones, her grandson, who is the son of her deceased son, and no other child, grandchild or descendant.

On July 27, 1917, said Mary M. Jones executed her last will and testament, which was, on January 29, 1919, duly probated by order of the probate court of Marion county in the State of Indiana, and which last will and testament, so far as here involved, is as follows:

"Item I. I hereby give, bequeath and devise all of my estate, both real and personal, in fee simple and in shares hereinafter mentioned, unto my two grandchildren, namely: Helen M. Jones, daughter of my son, Lawrence Jones, and Ernest E. Jones, who is also my adopted son and the son of my deceased son, John H. Jones; but subject to the right of occupancy hereinafter given to my husband and my said son Lawrence, during their respective lives, in the dwelling house.

"Item II. Said Helen M. Jones shall have one-half and said Ernest E. Jones one-half of said estate, both real and personal. * * *

"Item III. I give to my husband, John M. Jones, and to my son, Lawrence Jones, the right during their respective lives to occupy the residence property in Perry township, Indiana, as a dwelling house so long as said residence property shall belong to my said grandchildren or either of them or their heirs; it being my intention that this right of occupancy shall be a charge on the interests in such land herein devised and bequeathed unto my said two grandchildren."

Said will and testament was duly recorded in the office of the clerk of said probate court of Marion county, and on March 12, 1919, said John M. Jones executed and acknowledged his written instrument of election in due form to take by law, which was duly recorded.

Said John M. Jones made no sale, conveyance or other disposition of his interest in the real estate aforesaid or any part thereof and died the owner thereof intestate on March 29, 1923, leaving him surviving his son Lawrence H. Jones and his grandson Ernest E. Jones, and no widow or other child or descendant.

He continued to dwell in said residence property until about six months before his death; and said Lawrence H. Jones, with his wife and his daughter have resided in said residence property from the time of the death of said Mary M. Jones until the present time.

The above...