Tom v. Tom

• Decision Date: 27 March 1940
• Docket Number: 16384.
• Citation: 26 N.E.2d 410,107 Ind.App. 599
• Parties: TOM v. TOM.
• Court: Indiana Appellate Court

26 N.E.2d 410

107 Ind.App. 599

TOM v. TOM.

No. 16384.

Appellate Court of Indiana, in Banc.

March 27, 1940

Hempling & Smith, of South Bend, for appellant.

Brubaker & Rockhill, of Warsaw, for appellee.

STEVENSON Judge.

This action was brought by the appellee, Martha Tom, for the partition of certain real estate located in Kosciusko County. The appellee was the second childless wife of John F. Tom who died testate in Kosciusko County on February 15, 1933. By the terms of his will, which was duly admitted to probate in the Kosciusko Circuit Court on the 23rd day of February, 1933 the testator gave and devised all of his real estate to his wife, appellee herein, for and during the term of her natural life with the remainder over to his son, the appellant herein, or his heirs. The appellee herein renounced the provisions of the will and elected to take under the statute as a childless second wife. She then filed a complaint for partition of the real estate of which her husband died seized. In her complaint she alleged that she was the owner of an undivided one-third part of such real estate for and during her natural life and that the appellant herein was the owner of the remainder of said real estate. She alleged that the same was not divisible, and asked that the real estate be sold and the proceeds divided between the parties according to their respective interests.

To this complaint the appellant, Earl Tom, filed an answer in two paragraphs. The first paragraph was in general denial, and the second paragraph alleged the execution and the probate of the will, by the provisions of which the appellee herein was entitled to a life estate, with the remainder in fee to the appellant. That under the provisions of Sec. 3-2406 Burns' Indiana Statutes, 1933 Rev., Sec. 1111 Baldwin's 1934, no sale of said real estate could be ordered since such order would be contrary to the provisions of the last will of John F. Tom, deceased. A demurrer was filed to the second paragraph of answer, which demurrer was sustained. The case was submitted to the court for trial upon a stipulation of facts and the court entered a decree and judgment in favor of the appellee, ordering a partition and sale of the land in question. The court further ordered that from the proceeds of such sale the costs and expenses be first paid "including the fees and commission of said commissioner and the fees for the plaintiff's attorneys." A motion for new trial was filed and overruled and this appeal has been perfected.

The errors relied upon for reversal are, first, error in sustaining the demurrer to the second paragraph of answer second, error in including a fee for the plaintiff's attorneys to be paid from the proceeds of the sale; third, error in overruling appellant's motion for new trial.

The facts were stipulated. The principal question presented for our consideration is whether or not the appellee, as a second childless wife, to whom was devised the real estate in question for life by the will of her deceased husband, may, upon her election to take under the law, maintain an action for the partition of the real estate as against a remainderman who is a sole surviving heir at law of said testator and a child by a former marriage.

The appellant contends that since an order of partition and sale of the real estate was contrary to the intention of the testator as expressed in his will, the same is forbidden by Sec. 3-2406, Burns' Indiana Statutes, 1933 Rev., Sec. 1111, Baldwin's 1934. This statute reads as follows: "Such court shall not order or affirm partition of any real estate contrary to the intention of a testator, expressed in his will."

It is clear that this statute was not intended to govern the rights of parties not affected by the will. This statute is applicable only where the rights of all parties are fixed by the provisions of the will under which they claim title. As was said by the Supreme Court of Illinois, "a court of equity will not grant partition in favor of the complainants in violation of conditions and restrictions created by the will or other writing from which the complainants derive their title." Winemiller v. Mossberger, 1933 355 Ill. 145, 154, 188 N.E. 903, 907. In the instant case the appellee renounced the provisions made for her in her husband's will and elected to take under the laws of descent. As to her interest in the land thus acquired, the will is...