McClanahan v. Williams

Decision Date19 December 1893
Docket Number16,495
Citation35 N.E. 897,136 Ind. 30
PartiesMcClanahan v. Williams et al
CourtIndiana Supreme Court

From the Sullivan Circuit Court.

Judgment affirmed.

J. T Hays and H. J. Hays, for appellant.

W. C Hultz, for appellees.

OPINION

Hackney, J.

The appellant sued to quiet his title to a tract of land in Sullivan county.

The appellee Sarah C. Williams filed what she denominated a counterclaim, in which she alleged that in 1864 she was but fifteen years of age and was the wife of Elijah W. Williams, who then owned the land in question; that in said year she and her said husband joined in a conveyance of said lands to the appellant; that thereafter, and until in 1891, she continued to be the wife of said Elijah W. Williams, who, in said last named year, departed this life; that on the 2d day of November, 1891, she disaffirmed said conveyance, and gave notice thereof to the appellant. She prayed partition, by which one-third of said lands might be set off to her and two-thirds to the appellant.

To this pleading the appellant responded in what he called an answer, in which he alleged an innocent and good faith purchase, a continuous and uninterrupted adverse possession, valuable improvements, constant occupancy and payment of taxes, all under color of title and open and notorious claim of ownership; that during the twenty-seven years of his occupancy, claim of ownership and making of improvements, and up to the commencement of this suit, the appellee Sarah, with full knowledge of all of the facts, stood by, concealed her infancy and claim of ownership, and gave no notice of disaffirmance until the commencement of this suit, and that she became twenty-one years of age more than twenty years before this suit was commenced.

The court overruled appellant's demurrer to appellee's counterclaim, and sustained the appellee's demurrer to the appellant's answer thereto.

These rulings present the questions for consideration by this court. The record discloses a default by William R., Frank, and Martha A. Williams, and an answer by guardian ad litem for Clara A. Williams, a minor. The decree appears to have been rendered upon refusal of the appellant to plead further, after the sustaining of the demurrer of Sarah C. Williams to his answer. No submission or trial is shown as to the issue made upon the answer of the guardian ad litem, and the validity of the decree as against said Clara, and possibly as to the appellees who were defaulted, may well be doubted. As the only issue made in this court arises upon the rulings as between the appellant and Sarah C. Williams, we do not pass upon the validity of the decree in other respects.

The appellant contends that the appellee's "counterclaim" was insufficient in failing to allege the death of Elijah W. Williams intestate, and that she, as his widow, had no provision by will. This contention rests upon section 2491, R. S. 1881, and section 428, Elliott's Supp.

The first of these sections defines the interest of the surviving wife in "the real estate of which her husband may have been seized in fee simple at any time during the marriage, and in the conveyance of which she may not have joined," and it is provided "that if the husband shall have left a will, the wife may elect to take under the will instead of this * *" provision.

By section 428, supra, it is provided that where a husband dies testate the wife surviving shall take under the will unless she elects in writing to take under the law. The application of these provisions, which we understand the appellant's learned counsel to make, is, that since the adoption of section 428, supra, a legal presumption arises, in the absence of countervailing allegations, that the widow receives testamentary provision, and that such provision is in lieu of all interest in the lands of which the husband was owner during his marriage, and in the conveyance of which the wife did not join.

If we should accept the contention that testacy and not intestacy is presumed, there would appear to be force in appellant's contention, provided it were directed to lands of which the husband died seized. Here it is directed to lands of which he did not die seized, but which he conveyed, effectually as to himself. Of such lands, we think it perfectly clear that the husband could have made no testamentary disposition.

The wife held an inchoate interest in all of the lands owned by the husband during his marriage to her. This the law gave her, and she could not be deprived of it by any act of her husband, even by the devise of all of his interest in all such lands. In the lands sold to the appellant by Elijah W. Williams, the appellee had an inchoate interest in one-third, and if her infancy left her in the attitude of not having joined in the conveyance, that interest became absolute upon the death of Elijah. Just how any possible testamentary provision by Elijah for her, in lands of which he died seized, would be deemed to defeat this result, we do not observe. She had the same character of interest in any other lands owned by him during their marriage. If he continued to own such other lands until his death, he could not defeat the consummation of that interest by any testamentary provision he could make; if he gave her one-third thereof, it would but fulfill the requirements of the law, while, if he gave it all to her, we see no reason for the rule that such provision should stand as compensation for interests held by the appellant and, under the law, belonging to her.

Treating the conveyance to the appellant as one in which the appellee did not join, he now holds lands in which, upon the death of her husband, she became the absolute owner of one-third. Of this ownership she could not be deprived by the will of her husband; this interest could not be conferred by the husband upon the appellant by any testamentary provision; an attempt to have done so would have failed, just as the attempted conveyance of such interest by the husband alone had failed.

If a will by Elijah W. Williams could have divested the title of the appellee, and could have conferred that title upon the appellant, the case of Fisher v. Payne, 90 Ind. 183, might be an authority upon a question of pleading, but then only upon the presumption that said Elijah died testate. But, as we have said, no such testamentary power could exist.

The appellant does not dispute the proposition that ordinarily the presumptions are in favor of intestacy and not of testacy, but it is claimed that the enactment of section 428, supra, created the presumption in favor of testacy.

The primary rule for the casting of estates is that prescribed by the laws of descent, and, to maintain this primary rule, the first presumption must be that of intestacy. The rule is accepted as a just and equitable method of distribution, and it is only when inequality is desired that testamentary rules need to be employed. When the same quality and quantity of estate is cast by devise that is secured by the law, the presumptions in favor of the law are so strong that it is held that the estate vests by descent and not by devise. Denny, Exr., v. Denny, 123 Ind. 240, 23 N.E. 519; Gilpin v. Hollingsworth, 56 Am. Dec. 737.

In the early history of this court, it was held that even when it was shown that a will existed, but it was not shown what disposition it made of the estate of the testator, the estate would vest under the law and upon the higher presumptions in favor of the law. Stephenson v. Doe on Demise, 8 Blackf. 508.

This case has been carried into the American Decisions, volume 46, page 489, and is supported by the later cases of Waugh v. Riley, 68 Ind. 482; Thomas v. Thomas, 108 Ind. 576, 9 N.E. 457; Denny v. Denny, supra; Baxter v. Bradbury, 37 Am. Dec. 49; Boisseau v. Aldridges, 27 Am. Dec. 590; Lipman's Appeal, 72 Am. Dec. 692.

But for this presumption, the burden would rest upon the heir to establish the negative proposition that the ancestor had died...

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