Rawley v. Sanns

• Citation: 141 Ind. 179,40 N.E. 674
• Parties: RAWLEY et al. v. SANNS et al.
• Decision Date: 30 April 1895
• Court: Indiana Supreme Court

141 Ind. 179

40 N.E. 674

RAWLEY et al.

v.SANNS et al.

Supreme Court of Indiana.

April 30, 1895.

Appeal from circuit court, Fulton county; George Burson, Judge pro tem.

Action by Julius Rawley and another against Rebecca Sanns and others for partition of real estate. Judgment for defendants, and plaintiffs appeal. Affirmed.Rawley & Baker and Conner & McMahan, for appellants. Holman & Stephenson and J. H. Bibler, for appellees.

McCABE, C. J.

The appellants sued the appellees for partition of certain real estate in Fulton county, the complaint being in the ordinary form. The appellees answered and filed a cross complaint setting up title in themselves of all the real estate sought to be parted. Upon the issues formed there was a trial by the court, resulting in a special finding of the facts, upon which the court stated conclusions of law favorable to the defendants, upon which they had judgment. The ruling of the court overruling the demurrer to the appellees' cross complaint and the conclusions of law are assigned for error. As the same questions arise on the conclusions of law that arose on the demurrer to the cross complaint, the conclusions of law alone will be considered. The substance of the facts found is as follows: That the real estate in controversy consists of lots 67 and 68, old plat of the town of Rochester, Ind. That they were owned by Mary Blohm, who was the wife of Wilhelm Blohm at the time of her death. That she died October-, 1887, the owner of said lots, together with other lands in said county described in the complaint and cross complaint, partition only being sought of said lots, and left surviving her said husband. She had made and executed a will dated May 29, 1884, containing the following provisions: “(1) I give and bequeath to my husband, Wilhelm Blohm, for and during his natural life, the use, occupancy, rents, and profits of all the real estate of which I may die seised, with full power and authority to sell and convey, by deed in fee simple, all or any part of my real estate, if the same shall be deemed by him necessary to his support and maintenance. (2) I give and bequeath to my said husband, Wilhelm Blohm, all the personal property of which I may die seised or the owner of. (3) Should any property, real or personal, of which I die seised, remain undisposed of at the time of the death of my said husband, I direct that the same shall descend to my blood relatives in proportion as the same would descend to them if this will had not been made. (4) I direct that this will shall be probated, but that no letters testamentary shall be issued on same during the life of my said husband, nor the property above disposed of interfered with, either by the court or any of my heirs, during his lifetime.” That said will was duly probated in the office of the clerk of the Fulton circuit court, and is recorded in the will record therein. That said Mary Blohm at her death left neither father, mother, child, nor children nor descendants of children surviving her. That subsequently, on May 9, 1889, said Wilhelm Blohm died intestate, and left surviving him, as his sole and only heir at law, John Blohm, his brother. Said Wilhelm Blohm left neither father nor mother nor child nor children surviving him. That on December 15, 1892, said John Blohm and his wife, by deed duly acknowledged, conveyed to the plaintiffs Julius Rowley and Harriet Rowley, his wife, the undivided one-third of said lots. That this action was commenced December 24, 1892. That afterwards, on May 9, 1893, the said John Blohm and his wife, by deed of conveyance duly acknowledged, conveyed the undivided two-thirds of said real estate to said Julius Rowley and Harriet Rowley, plaintiffs. That the defendant Rebecca Sanns is the only surviving sister of Mary Blohm, and that her codefendants are the only surviving descendants of the brothers and other sisters of said Mary Blohm. That said Wilhelm Blohm from the time of the death of his wife exercised full power and control over all the property left by said Mary until his death. That Wilhelm Blohm disposed of and sold 160 acres of the land his said wife died seised of, lying 1 1/2 miles east of Rochester, by deeds. That the deed for a part thereof, to Levi Heilburn, contains the following recital: “The grantor comes into possession of said real estate by virtue of the will of Mary Blohm, the wife of the grantor, said will being recorded in Will Record C, at pages 131 and 132, in clerk's office of Fulton county, Indiana; that the grantor says the sale of said real estate is necessary for his support and maintenance.” That in the deed to Teresa Levi and James Sanns, for another part thereof, is the following recital: “Said grantor conveys said land by virtue of his ownership therein, and by virtue of the power vested in him by the will of his late wife, Mary Blohm, which will was duly probated November 3, 1887, and duly recorded in th clerk's office, in Will Record C, of the Ful on circuit court.” That, immediately after the death of Mary Blohm, said Wilhelm Blohm took the will of Mary Blohm to K. G. Shryock, one of the subscribing witnesses thereto, and procured him to have the same probated. The court concludes the law to be: (1) That the defendants are the owners of the lands mentioned and set out in the pleadings. (2) That the plaintiffs took no title to the real estate in question by virtue of their conveyance from John Blohm and wife.

In Clark v. Clark, 132 Ind. 25, 31 N. E. 461, it was said: “It is true that under the provisions of section 2485, Rev. St. 1881 (section 2642, Burns' Rev. St. 1894), the husband, at the death of his wife, takes one-third in fee of the land of which she died seised, whether she died testate or intestate; but where the wife leaves a will, making provision for the husband inconsistent with his rights under the law, no valid reason can be assigned, in our opinion, why he may not elect to abandon his rights under the law, and take, in lieu thereof, the provisions made for him by the will. To deny the right renders it impossible for the wife to make...