Roush v. Hullinger

• Decision Date: 30 June 1949
• Docket Number: 17861.
• Citation: Roush v. Hullinger, 119 Ind.App. 342, 86 N.E.2d 714 (Ind. App. 1949)
• Parties: ROUSH v. HULLINGER et al.
• Court: Indiana Appellate Court

86 N.E.2d 714

119 Ind.App. 342

ROUSH v. HULLINGER et al.

No. 17861.

Appellate Court of Indiana, in Banc.

June 30, 1949

Warren E. McGill, South Bend, Seibert, Oare & Deahl, South Bend, for appellant.

Roy Sheneman, Plymouth, for appellee.

MARTIN Judge.

This is an appeal from a judgment on appellees' counterclaim to quiet title to 40 acres of farm land in St. Joseph County Indiana. The issues were based upon a paragraph of the complaint for partition and a paragraph of the complaint for accounting, together with answers filed thereto and two paragraphs of counterclaim to quiet title filed by the appellees and the answers of the appellant thereto, and the court found against the appellant on those issues. Appellant assigns error in the overruling of her motion for new trial which specifies that (1) the decision of the court is not sustained by sufficient evidence, (2) the decision of the court is contrary to law.

Although the first specification in appellant's motion for a new trial presents no question since a negative decision may not be attacked upon the ground that there is a lack of evidence to sustain it, the appellant may properly assert under the second specification that by the decision of the trial court she was denied the relief to which the evidence entitled her. Wadler v. Mogul Rubber Corporation, 1945, 116 Ind.App. 152, 61 N.E.2d 472; Wilson, Adm'x v. Rollings, 1938, 214 Ind. 155 14 N.E.2d 905; McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 51 N.E.2d 474; Department of Insurance v. Indiana Travelers Assur. Co., 1945, 115 Ind.App. 285, 58 N.E.2d 761.

This case was tried by the court without the intervention of a jury. This suit involved the construction of an agreement purporting to restate the contents of a prior lost antenuptial contract which contained the following provisions: 'The said Ellen Bickel shall have possession of all the real estate of which I may die seized for the period of one year after my death, together with one-fourth of the proceeds therefrom.'

The contention of counsel for appellant is that in accord with the proper construction of this provision the appellant should have possession of all real estate of which her husband died seized for a period of one year after his death including the incidents thereof, such as the exclusive right to occupy and control the same and to receive the profits therefrom and that in addition to such possession and the incidents thereof, the appellant was to receive a one-fourth title interest in all real estate of which Isaiah Roush died seized.

The rule by which we must be controlled in the interpretation of this contract is that which is applicable to any other contract: First, it must be considered not in fragements, but as an entirety, and the intention of the parties ascertained through the words they have used. To ascertain their intention, regard should be had to the character of the instrument, the condition of the parties, and the object which they had in view. Kennedy v. Kennedy et al., 1898, 150 Ind. 636, 50 N.E. 756.

The circumstances or conditions of the parties to this contract, at the time of its execution, appearing from the averments of the second paragraph of counterclaim are that the decedent, Isaiah Roush, intermarried with appellant in the year of 1914, at which time each had children by former marriages, and at said time each was the owner of property; said decedent was survived at his death by the appellant, a second childless wife and 7 children by former marriage.

The right of an adult intended husband and wife in contemplation of marriage, to intercept a statutory line of descent, or the rights conferred by law, and substitute by contract, or agreement, a rule of inheritance of their own creation, by which their respective rights in the property of each other may be measured or determined, is a well settled principle. Bishop on Married Women, section 427; McNutt v. McNutt, 1889, 116 Ind. 545, 19 N.E. 115, 2 L.R.A. 372.

Antenuptial contracts are favored by the law. They adjust property questions and promote domestic happiness. In such contracts no formality is required and a liberal construction will be given them in every case, giving effect, if possible, to the intention of the parties. Moore, Adm. v. Harrison, Adm., 1900, 26 Ind.App. 408, 59 N.E. 1077 and cases there cited.

The law is clear at the present time that an adult woman, before her marriage, may bar her legal rights in her husband's estate by her agreement to accept any other provisions in lieu thereof, and such an agreement will be upheld and enforced by the courts in the absence of fraud or...