Stone v. Elliott , No. 21964.

Docket NºNo. 21964.
Citation106 N.E. 710, 182 Ind. 454
Case DateNovember 18, 1914
CourtSupreme Court of Indiana

182 Ind. 454
106 N.E. 710

STONE et al.

No. 21964.

Supreme Court of Indiana.

Nov. 18, 1914.

On motion for rehearing. Motion granted. Former opinion overruled.

[106 N.E. 711]

For former opinion, see 101 N. E. 309.

Blacklidge, Wolf & Barnes, of Kokomo, for appellants. Bell, Kirkpatrick & Voorhis and Wm. C. Purdum, all of Kokomo, for appellee.


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 afterwards, while the wife of her second husband, Samuel Kizer, 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, decedent's widow, died February 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.

The first question here presented is: What estate did Rachel Elliott take in the lands of her deceased husband, Jacob Elliott? He died in 1875, seised of the land in fee simple. His widow, Rachel Elliott, had been his second wife and was childless. At the time of his death Jacob Elliott had seven living children. The statutes in force at the time of his death, in 1875, must be looked to for an answer to this question, and, upon reading these statutes, it is plain that the answer must be found in the first part of section 17 and the proviso of section 24. These should be read as though they were written as follows:

“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; 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

[106 N.E. 712]

death, descends to such wife, shall, at her death descend to his children.” 1 G. & H. pp. 294, 295.

If the interpretation of these provisions could be undertaken upon consideration of the legislative language, read in the light of the established rules for our guidance in such matters, there would be little difficulty in arriving at the correct result. That the plain words of the statute cast upon the widow by descent one-third of the lands of which her husband died seised, “in fee simple, free from all demands of creditors,” is too plain to seriously question; and in the event that the widow has been a second wife and is childless, and the husband left children by a previous marriage, it is just as plain that, upon the death of the widow, such children take the lands which have descended from their father to the widow, by inheritance from her as her heirs.

Upon first impression the words used by the Legislature can have no other import, but unfortunately the court is not at liberty to so treat the matter, but must have due regard to the interpretation heretofore placed upon these provisions. Therefore let us find what the law of this state, applicable to the facts with which we have to deal, was in August, 1875, for then the widow's rights arose, and it was under the law, as interpreted at that time, that her title vested. It must not be overlooked that the claim of title asserted by appellant grows out of the fact that he derives such right as he has pursuant to a sale of the lands to pay the debts of the decedent, Jacob Elliott. The appellant stands in his relation to the widow, and those claiming under her, in the attitude of the creditors, through whose rights he derives his claim.

In Martindale v. Martindale, 10 Ind. 566, which was a proceeding in partition by the childless widow against the children of the deceased husband by a previous marriage, the judgment of the lower court was reversed, because the court had set off to the widow one-third of her deceased husband's lands in fee, instead of for her natural life only.

This case was followed in Ogle v. Stoops, 11 Ind. 380, and in Rockhill v. Nelson, 24 Ind. 422, which, in its facts, was in all respects similar to Martindale v. Martindale, supra, the court, which meanwhile had undergone an entire change of judges, sets forth at length the argument of counsel in support of the contention that the statutes meant what they said, and proceeds as follows:

“This position, so forcibly put, addressed to this court before the decision in Martindale v. Martindale, 10 Ind. 566, would have been entitled to grave consideration; and it is, indeed, difficult to see how it could have been met by legal argument. But there are some questions in law, the final settlement of which is vastly more important than how they are settled, and among these are rules of property, long recognized and acted upon, and under which rights have vested.”

The Martindale Case was followed.

The case of Louden v. James, 31 Ind. 69, decided at the May term, 1869, was the first case in this court in which the creditors of the deceased landowner were involved in the litigation, and, upon its consideration, the mind of the court was directed to the effect of the earlier decisions upon the rights of the widow and heirs as against the creditors. The court perceived at once that the earlier interpretation of the proviso of section 24 was leading to consequences that probably were not considered by the court at the time of the decision of the cases involving only the childless widow and the children of the husband by a previous marriage. In order to evade these consequences, it seems that the court, instead of disapproving and overruling the earlier cases, undertook to distinguish them from the case then under review upon the notion that, as between the widow and the children by the previous marriage, the effect of the proviso was to cast upon the widow only an estate for life, while, as between the children of the previous marriage and creditors of the estate of their deceased father, the proviso did not have effect to cut down the estate in fee, which descended to the widow under section 17. The court puts the matter in this way:

“But the question now here is altogether different. It is not, what does the widow take as against children of the intestate? but it is, what does she take as against his creditors? The statute answers this question so plainly and expressly that there seems to be no room for construction. ‘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.’ 1 G. & H. 294, § 17. And then the language of the proviso to the twenty-fourth section is equally plain, that this fee simple, which, as against creditors, the second wife without children takes on the death of her husband, ‘shall at her death descend to his children.’ Language so plain cannot be disregarded.”

The court says further:

“It is not attempted to reconcile the present decision with the broad language contained in the opinions delivered in Martindale v. Martindale, and Ogle v. Stoops, supra. Those cases are simply deemed to settle the very question then before the court, and nothing beyond.”

And again:

“The sixteenth section expressly abolished dower, and the seventeenth, as against creditors, gives the widow, in a case like this, an estate in fee simple, to go on her death to the husband's children; and this would be interpreted to mean that the widow takes an estate in dower only, against anybody, whether child or creditor. Does the judicial function go to the extent of overruling the plain language and equally plain intention of the Legislature?”

In the case of Longlois v. Longlois, 48 Ind. 60, the assertion that “these cases (Martindale v. Martindale, Ogle v. Stoops, and Rockhill v. Nelson, supra) were again recognized as a correct exposition of the statute in the case of London v. James, 31 Ind. 69,” should be...

To continue reading

Request your trial
43 cases
  • Dowd v. Grazer, No. 29030
    • United States
    • Indiana Supreme Court of Indiana
    • December 15, 1953
    ...and its judgment, if conceded to be wrong, cannot be attacked collaterally in an habeas corpus proceeding. Stone v. Elliott, 1914, 182 Ind. 454, 476, 106 N.E. 710; Stephenson v. Daly, 1928, 200 Ind. 196, 158 N.E. 289, [233 Ind. 78] It is not here contended that the Elkhart Superior Court di......
  • Waugh v. Bd. of Com'rs of Montgomery Cnty., No. 9785.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 15, 1917
    ...of the subject-matter depends upon the allegations of the pleading which invokes it, and not upon the facts. Stone v. Elliott, 182 Ind. 454, 106 N. E. 710; Van Fleet, Collateral Attack, p. 73, § 60. [5][6] (4) Every court is clothed with authority to determine its own jurisdiction, both of ......
  • Nation v. Green, No. 9284.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 5, 1917
    ...defendants to such petition to sell, and hence their own representatives (sections 2848-2854, inclusive, Burns 1914; Stone v. Elliott, 182 Ind. 454, 460, 106 N. E. 710, 713). In such proceedings to sell the rule seems to be to the following effect: If an heir or beneficiary seeks to contest......
  • Beavers v. Bess, No. 8733.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 24, 1915
    ...deprive the court of jurisdiction acquired by the issuance and service, and open the judgment to collateral attack.” In Stone v. Elliott, 106 N. E. 710, 718, the court says: “The powers of a court extend to the determination of questions relating to their own jurisdiction. The power is to d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT