Stephenson v. Boody
| Citation | 38 N.E. 331,139 Ind. 60 |
| Decision Date | 10 October 1894 |
| Docket Number | 16,862 |
| Parties | Stephenson et al. v. Boody |
| Court | Supreme Court of Indiana |
From the Bartholomew Circuit Court.
The judgment is affirmed.
J. F Cox and W. L. Cox, for appellants.
M. D Emig, for appellee.
The appellants, Sarah Stephenson, Elizabeth Hummel, George W Tull, Stoughton C. Tull, John J. Tull, William A. Tull and Chambers H. Tull, sued the appellee for partition of certain real estate described in the complaint, situate in Bartholomew county, Indiana.
A great number of rulings upon demurrers to answers were made which have been assigned for error. There was a special finding of the facts upon which conclusions of law were stated by the court in favor of the appellee, upon which he had judgment over a motion for a new trial. The errors assigned also call in question the conclusions of law, and the action of the court in overruling appellants' motion for a new trial.
It has often been held by this court, that where the same questions are presented on the special findings and conclusions of law that arise on the demurrers to pleadings, as is the case here, the rulings upon the demurrers are immaterial. For that reason we do not examine the errors assigned on the rulings on the demurrers to pleadings.
The substance of the special finding is as follows: That Richard Tull died on April 10th, 1870, seized in fee simple of certain lands situate in said county, particularly described, among which was the land sought to be parted in this suit; that he left surviving him as his heirs his widow, Nancy J. Tull, she being his second wife and childless, the plaintiffs herein, and one Richard J. Tull, Jr., his children by a former marriage; that on April 18th, after the death of said Richard J., Sr., the said Nancy J. Tull conveyed by warranty deed all her interest in said lands to Philip J. Hummel; that she afterwards sued said Hummell and said children in the Bartholomew Circuit Court to set aside said deed to Hummell for fraud and undue influence practiced upon her by Hummel, and for partition against said children, claiming only a life estate in the undivided one-third of said lands, and that said children were the owners as tenants in common of the whole of said lands subject only to her alleged life estate; that on August 8th, 1870, said court set aside said deed upon the ground alleged, and also entered a decree of partition in favor of said widow, and set off the land described in the complaint to said widow for and during her natural life; and these plaintiffs, as the children and heirs of said deceased, were adjudged and decreed to be the owners in fee simple of the whole of said real estate of which decedent died seized, subject only to the life estate of said widow therein; that thereafter, on May 21st, 1872, said Nancy J. Tull sold and conveyed by warranty deed to the defendant, Boody, all the right, title and interest as set off to her in said suit in said lands, being the same land described in the complaint herein; that on July 27th, 1871, the plaintiffs, John J. Tull and wife and George W. Tull and wife, sold and conveyed by warranty deed, to Wallis Wilson, all their undivided interest in and to the real estate estate owned by decedent at his death, including that described in the complaint herein; that on January, 1872, said Wallis Wilson sold and conveyed the shares and interest so acquired by him to defendant Boody; that on April 4th, 1872, the plaintiffs, Sarah Stephenson and husband, William A. Tull and Elizabeth Hummell and husband, sold and conveyed by warranty deed all their shares in and to the real estate of said decedent as his heirs, being three-eighths thereof including the lands described in the complaint herein; that on January 8th, 1872, the plaintiff, Stoughton C. Tull and wife, sold and conveyed by warranty deed his undivided one-eighth interest in said land, including that described in the complaint herein; that on December 25th, 1871, the plaintiff, Chambers H. Tull, and wife, by warranty deed, conveyed to defendant, Boody, all of his undivided interest and share as heir of said decedent in the lands of said decedent, including that described in the complaint herein; that the said defendant, Boody, and Wallis Wilson, in each of their purchases from the plaintiffs, paid the full value of a fee simple title per share less only the value of the life estate of the widow therein; that at the time of making each and all of said sales by these plaintiffs they represented and held themselves out to be the owners in fee simple and tenants in common of the whole of said real estate subject only to the life estate of said widow as fixed by the judgment of said court, and the defendant purchased the real estate in question in good faith, believing such representations to be true; that defendant, Boody, in good faith, believing that the title he had so purchased was perfect and indefeasible, had expended large sums of money in lasting and valuable improvements on said land with the knowledge and acquiescence of plaintiffs, of the value of $ 2,500, and that said improvements were made during the lifetime of said widow, who died August 28th, 1888; that at the time of the death of Richard J. Tull, Sr., and at the time of said suit in partition in the Bartholomew Circuit Court, and for a long time prior thereto, the Supreme Court continuously construed the statute of descents in such cases to invest the childless second wife with a life estate only in the one-third of her deceased husband's real estate; that the defendant knew Richard J. Tull, deceased, in his lifetime, knew of his first and second marriages; that plaintiffs were his children by a former wife, and that there were no children by his second marriage.
1. The conclusions of law are to the effect that Nancy J. Tull, as the surviving widow of Richard J. Tull, Sr., as such widow inherited the undivided one-third of the real estate of her said deceased husband in fee simple, and being a childless second wife of said decedent, the descent of said real estate was cast by law upon the plaintiffs' as the children of said decedent by a former marriage, and on the death of said surviving widow the said plaintiffs were entitled to inherit from said widow as forced heirs under the statute of descents in such cases.
2. That the title to the real estate described in the complaint was put in issue in the partition suit between the said widow and these plaintiffs, and determined on August 8, 1870, in the Bartholomew Circuit Court.
3. That the decree and judgment rendered therein, although founded upon an erroneous construction of the statute of descents, being unappealed from is binding upon the parties thereto, and upon these plaintiffs, constituting a rule of property.
4. That by reason of all the facts set forth in the special findings herein, the plaintiffs, and each of them are estopped from setting up any title, claim or interest in and to the real estate described in the complaint herein, or from denying the fee simple title of the defendant Boody.
There is also a general finding against the plaintiffs on their complaint, and for the defendant on his answer. But such general finding must be disregarded as a general verdict must when a special one on demand has been returned. Louisville, etc., R. W. Co. v. Balch, 105 Ind. 93, 4 N.E. 288.
By a long line of decisions of this court, beginning with Martindale v. Martindale, 10 Ind. 566, at the May term of this court for 1858, and extending up to the case of Utterback v. Terhune, 75 Ind. 363, at the May term 1881, it was held that by the provisions of sections 2483 and 2487, R. S. 1881, a second or subsequent wife, having no child by her husband, took a life estate only in his lands where he left upon his death children alive by a former wife. At the May term 1881, in Utterbach v. Terhune, supra, those decisions were overruled, and it was decided that a second or subsequent wife having no child by her husband, inherited a fee simple in the undivided one-third of his land, where he died having children alive by a previous wife, and that at her death such children became her forced heirs.
This last ruling is now settled and adhered to as the correct construction of this statute. Caywood v. Medsker, 84 Ind. 520; Hendrix v. McBeth, 87 Ind. 287; McClamrock v. Ferguson, 88 Ind. 208; Flenner v. Benson, 89 Ind. 108; Flenner v. Travellers Ins. Co., 89 Ind. 164; Bryan v. Uland, 101 Ind. 477; Thorp v. Hanes, 107 Ind. 324, 6 N.E. 920; Erwin v. Garner, 108 Ind. 488, 9 N.E. 417; Gwaltney v. Gwaltney, 119 Ind. 144, 21 N.E. 552.
Accordingly it was held by this court in the recent case of Haskett v. Maxey, 134 Ind. 182, 33 N.E 358, that deeds executed by the children of a previous wife, where their father at his death left a second or subsequent childless wife, such deeds being executed during the life of such widow, and while the former construction of the...
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