Odell v. Reynolds

• Decision Date: 05 March 1901
• Citation: 59 N.E. 846,156 Ind. 253
• Parties: ODELL et al. v. REYNOLDS et al.
• Court: Indiana Supreme Court

156 Ind. 253

59 N.E. 846

ODELL et al.

v.REYNOLDS et al.

Supreme Court of Indiana.

March 5, 1901.

Appeal from circuit court, Warren county; Joseph M. Rabb, Judge.

Action by Clinton W. Odell and another against James Reynolds and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

John W. Sutton, for appellants. C. V. McAdams, for appellees.

DOWLING, C. J.

James Odell died in February, 1879, seised of a tract of land containing 10 acres, situated in Warren county. He left surviving him his widow, Mary E., who was a second wife, and five children,-Sarah M., Nancy, Clinton W., Dora, and Desha. The total value of his estate, real and personal, did not exceed $500, and upon the order of the court all the title and interest of the decedent in the said real estate was vested in the widow. This proceeding was taken under an act entitled “An act to amend sections 133 and 134 of an act entitled, ‘An act providing for the settlement of decedents' estates, etc.,’ approved June 17, 1852,” approved February 24, 1869. Acts Reg. Sess. 1869, p. 32 (Burns' Rev. St. 1894, §§ 2575, 2576). Afterwards the widow married one Phillips, and during such marriage relation sold, and, by deed in which her husband joined, conveyed, said tract of land to Mahala A. Doty, who conveyed it to James E. Reynolds and William Bannister. Subsequently Mrs. Phillips died, leaving surviving her the appellants, Clinton W. Odell and Dora Odell, and the appellee, Desha Odell (married to Hanley Ireland), her children by her former husband, James Odell, and Sarah M. Smith and Nancy Lemmon, children of James Odell by his first wife. The appellants, who are two of the children of the said James Odell and Mary E., the second wife, to whom the real estate was set off, claiming to be the owners in fee simple of the undivided two-thirds thereof by descent from the said Mary E., and alleging that the appellee Desha Ireland is the owner of the remaining one-third thereof, seek to quiet the title against the other appellees, and ask for partition of the said tract. To a complete setting out of the foregoing facts a demurrer was sustained, and judgment was rendered thereon in favor of Reynolds and Bannister, the parties filing the demurrer, and who were the only defendants before the court. The question presented is whether Mary E. Odell, the widow of James Odell, held the said tract by an absolute title in fee simple, or whether her right to convey said land was suspended during the continuance of her second marriage.

Appellants insist that the power of the widow of James Odell to convey said real estate after her marriage to Phillips was suspended by the provisions of section 1 of an act approved March 29, 1879. Acts 1879, p. 123 (Burns' Rev. St. 1894, § 2641). The widow of Odell took the land by virtue of the proceedings of the court under sections 133-136, pp. 279, 280, of the Revised Statutes of 1852, as amended by the act of February 24, 1869 (Acts Reg. Sess. 1869, p. 32; Burns' Rev. St. 1894, §§ 2575, 2576). These sections...