Richards v. Richards

• Decision Date: 06 February 1861
• Citation: 17 Ind. 636
• Parties: Richards and Others v. Richards
• Court: Indiana Supreme Court

17 Ind. 636

Richards and Others v. Richards

Supreme Court of Indiana

February 6, 1861

APPEAL from the Grant Circuit Court.

The judgment is reversed, with costs. Cause remanded.

Isaac Van Devanter and J. F. McDowell, for the appellants.

J Brownlee, for the appellee.

OPINION

Hanna J.

Sarah Richards brought her action to obtain partition of certain lands, of which she averred her late husband died seized, and which, by will, he attempted to dispose of to his minor children, the present appellants, who are made defendants. Said minors were defaulted, and a guardian ad litem appointed to defend for all of them, except one who was not served with process, but whose testamentary guardian was served.

The guardian ad litem answered, admitting the marriage seizure, execution of the will and death of the testator but denying that plaintiff was entitled to any part of said lands, because of an ante-nuptial contract and of the execution of said will; which contract is as follows, substantially:

"Mem., &c. between, &c., witnesseth, that in consideration hereafter mentioned, to wit: the parties propose to enter into marriage, and both owning property, it is therefore agreed by the said parties, that in consideration thereof the said Henry Richards, Sr., is to have the right to dispose of his lands by will or otherwise, agreeably to his own views; provided, if he dies first, the said Sarah is to be provided with a house and home and support on the home farm during her lifetime, and she be entitled to such property as may be left of what she brings to him; also a share of what may be laid in for the support of the family, she taking care of his children while they are willing to stay with her. It is further agreed that so much money as the said Henry may have over and above what may be needed for the support of the family, he is to dispose of by his will or otherwise, as to him shall seem right; whereof the said Sarah claims no part, and hereby relinquishes all right thereto, that is, whatever is now accumulated. And the said Sarah is to take care of said children, or cause them to be taken care of, and provided for, if the said Henry should die before they are able to take care of themselves; that is, the young children, or those by Mary. The said Sarah is to pay the taxes and keep up said farm after his death if he dies first. In witness," &c., signed, sealed and acknowledged.

By the will, the land in controversy was devised to the minor defendants, being children by the testator's second wife, Mary; to be divided among them when they arrive at age; and by it certain legacies, in money, were to be paid to his children by his first wife. His executor was to rent the land, keep it in repair and pay taxes. If any money was left after paying debts and legacies, &c. it was to be loaned; and, afterward, divided share and share alike among his second set of children. The will then states that, "Provided, also, and if I should die before I obtain a divorce from Sarah Richards, alias Sarah Allen, and she obtains a support from my estate, then, in that case it will be likely to consume the rents and profits, then in that case, the farm to be rented until the aforesaid legacies are paid without having to sell any of the lands."

It is shown that the testator died about three years after the marriage, and averred in the answer that at his death and for a long time before, said Sarah had been living in the State of Illinois, having without any just cause abandoned said decedent, and failed on her part to comply, &c.

There was a demurrer filed and sustained to the answer; and the record proceeds to state that "defendant having failed to withdraw said demurrer or further answer, it is therefore considered," &c., setting forth the finding and judgment of the Court.

It is manifest that the judgment should be reversed, for the reason that the record thus discloses the fact that it was rendered without proof,...