Stone v. Elliott

• Decision Date: 27 March 1913
• Docket Number: No. 21,964.,21,964.
• Citation: 101 N.E. 309
• Parties: STONE et al. v. ELLIOTT.
• Court: Indiana Supreme Court

101 N.E. 309

STONE et al.

v.ELLIOTT.

No. 21,964.

Supreme Court of Indiana.

March 27, 1913.

Appeal from Circuit Court, Howard County; L. B. Nash, Judge.

Action by Jesse Elliott against George W. Stone and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908.

Blacklidge, Wolf & Barnes, of Kokomo, and W. O. Johnson, of Chicago, Ill., for appellants. Bell & Kirkpatrick and Bell & Purdum, all of Kokomo, for appellee.

SPENCER, J.

Appellee brought this action to quiet title to an undivided one twenty-fourth interest in certain lands located in Howard county, and have partition of the same.

In a special finding the court found the material facts in the case to be, in substance, as follows: That Jacob Elliott died testate in Howard county in August, 1875, leaving a widow, Rachel Elliott, who was a second, childless, wife, and also seven children by his first wife, of whom appellee was one, also certain grandchildren; that said Jacob Elliott died the owner in fee simple of the lands described in the pleadings; that on June 24, 1875, he duly executed his last will and testament in which he bequeathed to his wife, “in lieu of all her interest in all of my real estate and personal property, the sum of $500 in cash,” and, after making certain other bequests, devised and bequeathed the residue of his real and personal estate to his children and their heirs; that on September 7, 1875, James R. Lindley, executor of the will, filed in the Howard circuit court his petition to sell the real estate of the decedent to make assets for the purpose of paying the debts of said decedent; that said court ordered such sale, and notices were duly published and the sale had, the purchaser being one William Elliott; that appellee was named in the executor's petition, but did not appear to said petition nor to the proceedings to sell real estate, but therein wholly made default; that decedent's widow, Rachel Elliott, refused to accept the provisions made for her in said will, but elected to take all her rights under the law as surviving widow; that she subsequently executed two quitclaim deeds, therein conveying all of her interest in said real estate to said William Elliott, said deeds bearing dates of May 18, 1877, and February 22, 1881; that appellant George W. Stone claims to be the owner and holds possession of said real estate under a regular chain of conveyances from said William Elliott; that said Rachel Elliott, decedent's widow, died December 27, 1904; that appellee never received from the estate of his deceased father any part thereof, and that he never executed any deed or conveyance of his interest in the real estate described in the pleadings to any one; that each of the other children of Jacob Elliott, deceased, have executed to one of the remote grantors of appellant George W. Stone deeds of conveyance of their respective interests in said real estate. Upon this finding of facts, the court stated its conclusions of law to be with appellee, and in this appellants insist that the trial court erred.

[1] The principal question to be determined by this appeal is the nature of the estate which Rachel Elliott took in the lands of her deceased husband. To determine this question, we must look to the laws of descent in force at the time of Jacob Elliott's death, and the decisions construing the same, since his widow elected to take under the law rather than under the will. The statute of descent then in force provided that “if a man marry a second or other subsequent wife, and has by her no children, but has children alive by a previous wife, the land which, at his death, descends to such wife shall at her death descend to his children.” 1 Gavin & Hord, p. 295, § 24. Although, in some of the cases arising under this statute, doubts were expressed as to the correctness of its original construction, it had been uniformly held up to the time of decedent's death, and for some years thereafter, that, as against a decedent's children by a former wife, a subsequent childless wife inherited from her deceased husband a life estate only in one-third of his lands. Longlois v. Longlois, 48 Ind. 60;Rockhill v. Nelson, 24 Ind. 422;Ogle v. Stoops, 11 Ind. 380;Martindale v. Martindale, 10 Ind. 566.

In 1869, however, the Supreme Court had recognized that a possible distinction might exist in a case where the widow's rights were involved as against those of creditors of her deceased husband, and held in the case of Louden, Adm'r, v. James, 31 Ind. 69, that, as against creditors, the widow would take one-third of the intestate's real estate in fee simple as if she was a first wife, and that at her death this fee simple would descend to her husband's children, free from the demands of his creditors. That decision...