Spade v. Hawkins

• Decision Date: 05 January 1916
• Docket Number: No. 8998.,8998.
• Citation: 110 N.E. 1010,60 Ind.App. 388
• Parties: SPADE v. HAWKINS.
• Court: Indiana Appellate Court

60 Ind.App. 388

110 N.E. 1010

SPADE

v.HAWKINS.

No. 8998.

Appellate Court of Indiana, Division No. 2.

Jan. 5, 1916.

Appeal from Circuit Court, Pike County; John L. Butz, Judge.

Petition by Henry H. Hawkins, administrator of the estate of Lafayette Spade, deceased, against Martha Spade and others, asking for an order of sale of land owned by decedent to make assets for payment of debts. Judgment and decree for petitioner, and the defendant named appeals. Reversed, with directions.Frank Ely and John K. Chappell, both of Petersburg, for appellant. Richardson & Taylor, of Petersburg, for appellee.

CALDWELL, J.

Appellee, Henry H. Hawkins, as administrator of the estate of Layfayette Spade, deceased, filed his petition in the Pike circuit court, asking for an order for the sale of a 27-acre tract of land owned by decedent, to make assets for the payment of the debts of the estate. Appellant, the widow, and also the children of decedent were named as defendants. In addition to the averments necessary to the procuring of such order, there were other allegations to the effect that appellant and decedent intermarried March 4, 1900; that she deserted him within three months, and that thereafter continuously she lived, and at the time of the death of decedent she was living, in adultery with James King and others whose names were unknown to appellee. There is a prayer that the title to the lands be quieted against all claims of appellant, and that they be sold for purposes aforesaid. At the request of the parties, the court found the facts specially, and stated conclusions of law thereon. The finding, so far as material here, is to the following effect: Decedent died intestate in Pike county, Ind., October 9, 1912, leaving surviving him as his only heirs at law the appellant, his widow, and certain children of a former marriage, and also one child, the fruit of his marriage with appellant. At the time of his decease, he was the owner of the lands described in the petition. Appellant and decedent were married March 4, 1900, and lived together as husband and wife until May 27, 1900, when appellant separated herself from decedent without cause, and ever thereafter lived apart from him. Appellant after the separation had born to her three children. The first was born December 18, 1900, and was a legitimate child of her marriage to decedent. The others were born June 5, 1907, and July 1, 1911, and were both illegitimate, but the evidence is silent as to their paternity. Appellant, after deserting her husband, lived about one year with her father and brother, and thereafter lived as a member of the family of James King, the husband of her twin sister. The appellant's reputation for chastity in the town and township in which she lived has been and is bad. Since about October, 1906, and up to and including October 9, 1912, appellant lived from time to time in the practice of adultery with persons whose names are not disclosed by the evidence. The court stated a conclusion of law from the facts found that appellant, by reason of her adulterous practice of living at the time of the death of decedent, was not entitled to share in his estate. Judgment was rendered and decree entered on the conclusions of law that the entire tract of land be sold for the purpose of making assets to pay the debts of the estate, free from all claims of appellant as widow. Error is assigned on the foregoing conclusions of law, and also on the overruling of appellant's motion for a new trial. The only question presented under the latter assignment is respecting the sufficiency of the evidence to sustain the decision.

[1] Considering the first assignment, there is a statutory provision that:

“If a husband die testate or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors.” Section 3014, Burns, 1914.

A further statute applicable here is as follows:

“If a wife shall have left her husband, and shall be living, at the time of his death, in adultery, she shall take no part of the estate of her husband.” Section 3034, Burns, 1914.

By virtue of section 3014, supra, appellant, as surviving wife, at the decease of appellee's decedent, became the owner in fee simple of the undivided one-third of the lands involved in this proceeding, unless the facts proved and found by the court bring her within the condemnation of section 3034, supra. In order that such a result may follow, it must appear that subsequent to the marriage she abandoned her husband, and also that at the time of his death she was living apart from him in adultery. Wiseman v. Wiseman, 73 Ind. 112, 38 Am. Rep. 115.

It is specially found by the court that within less than three months after appellant and decedent were united in marriage, she separated herself from him without cause, and that she ever thereafter lived separate and apart from him. As to the second element of section 3034, the finding is as follows:

“That since about October, 1906, and up to and including the 9th day of October, 1912, the said Martha Spade has been living from time to time in the practice of adultery with parties whose names are not disclosed by the evidence.”

[2][3] A special finding should consist of ultimate facts and as a general rule evidentiary matter included therein will be disregarded. Eckhart v. Ft. Wayne, etc., Co. 181 Ind. 352, 104 N. E. 762;Dinius v. Lahr, 36 Ind. App. 425, 74 N. E. 1033. Nothing can be added to a special finding by presumption, inference, or intendment, and when a special finding is silent upon a material point, it is deemed to be found against the party upon whom rests the burden of proof. Donaldson v. State, 167 Ind. 553, 78 N. E. 182;Garretson v. Garretson, 43 Ind. App. 688, 88 N. E. 624. However, where the primary facts found lead to but one conclusion, there is no occasion for a statement of the ultimate fact. In such a case the ultimate fact will be considered as proven. But where from such primary facts stated in a special finding a particular inference or its contradiction may be drawn with equal degrees of certainty or plausibility, and if the special finding is silent respecting the ultimate fact, it must be considered as unproven. Mount v. Board, 168 Ind. 661, 80 N. E. 629, 14 L. R. A. (N. S.) 483;Mayer v. Lesh, etc., Co., 45 Ind. App. 250, 89 N. E. 894, 90 N. E. 651.

[4] Applying these general principles to the finding here, the ultimate fact which appellee was required to establish in order that he might defeat appellant's right as surviving wife to participate in the division of his lands or the proceeds thereof is that she was living in adultery at the time of her husband's death, she having theretofore separated herself from him. The finding is silent respecting such ultimate fact. We proceed to determine whether the finding contains its equivalent or other facts from which it results as a necessary inference. The finding that she “has been living from time to time in the practice of adultery” is equivalent to a finding that “she has been living from time to time in adultery.” Goodwin v. Owen, 55 Ind. 243, 249. The phrase “from time to time” is synonomous with “occasionally”; “at intervals”; “now and then”; 20 Cyc. 852. The finding then is to the effect that since October, 1906, up to and including October 9, 1912, appellant at intervals lived in adultery, or that occasionally she was guilty of adultery. This is practically equivalent to a finding that between the dates named she occasionally lived in adultery. Assuming that from such a finding there might be deduced an inference that appellant was in the midst of such an internal at the time of her husband's death, yet it cannot be said that the facts found compel such an inference. It is just as reasonable to conclude from such facts that while appellant now and then between the dates named was guilty of adultery, there may have been an absence of a continuous purpose and inclination to do wrong, and that previous to her husband's death appellant had reformed and that at that time she was living innocently. Conceding that the facts found are susceptible of different inferences, the one that appellant was living within the condemnation of the statute, the other that she was living virtuously, it was the province of the trial court, rather than this court, to deduce the ultimate inference. This the trial court failed to do. It has been held that a single act of adultery committed by the wife does...