Wallace v. Wallace

• Decision Date: 23 March 1953
• Docket Number: No. 18354,18354
• Parties: WALLACE v. WALLACE.
• Court: Indiana Appellate Court

Page 90

111 N.E.2d 90

WALLACE v. WALLACE.

No. 18354.

Appellate Court of Indiana, in Banc.

March 23, 1953.

Walter Nowicki, Edward J. Raskosky, George Kohl, Hammond, for appellant.

Wagner & Malo, Hammond, for appellee.

ROYSE, Chief Judge.

In her petition for rehearing, appellant earnestly contends that our construction of the quotation we used from the case of Sharpe v. Baker, 1912, 51 Ind.App. 547, 553, 96 N.E. 627, 629, 99 N.E. 44, on the subject of estates by entireties, was erroneous and in direct conflict with the holding in that case.

In our original opinion, 110 N.E.2d 514, 516, we stated our interpretation of the quotation referred to in the following language: 'In other words, entirety property is held by the entity created by marriage. It is not the separate property of either.'

In support of her contention, appellant quotes the following language from the Sharpe case [51 Ind.App. 547, 96 N.E. 633]:

'It has been held uniformly that the right of survivorship is one of the incidents of estates by entireties, and that the surviving tenant takes the whole of such estate, not by the jus accrescendi as a joint tenant, but upon the theory that the title to the whole estate vested in each one of said tenants at the time of the creation of the estate. * * * No court, so far as we are advised, has ever held that the estate by entireties vests in a legal entity, distinct from both the husband and wife, and we cannot so hold, without going counter to many principles of law long recognized and applied by the courts.'

In that case in the paragraph immediately preceding the quotation we used in our original opinion herein, this court said:

'By a fiction of the common law, the husband and wife were regarded as one person; the legal existence of the wife being suspended during coverture, or at least incorporated and consolidated into that of the husband. Blackstone's Com., book 1,

Page 442

Upon this legal fiction of the unity of husband and wife rests all of the distinctions and peculiarities which distinguish the estate by entireties from other joint estates. Preston says: 'It is the legal notion of unity of two persons, who are husband and wife, which gives occasion to the construction of an entirety of interest in their tenancy.' Preston on Estates,

Page 132

An estate by entireties is created when a husband and wife take an estate to themselves jointly, by grant or devise, or by limitation of a use made to them during coverture. Preston on Estates,

Page 131

On account of the unity of persons of husband and wife by marriage, they take the estate as one person * * *.' (Our emphasis.)

In that case we further pointed out that an estate by entireties can be created only as between husband and wife 'and is dependent entirely upon the unity of their persons by marriage'. And anything which has the effect of destroying this unity, such as divorce, destroys the estate. We further said in that case, 'While the statutes of this state have removed most of the common-law disabilities of a married woman, the common-law unity of husband and wife is preserved, in so far as that fiction is necessary to uphold the estate by entireties.' There are numerous other expressions to the same effect in both the original opinion and the opinion on rehearing in that case. The question before this court then was whether property owned by appellants as tenants by the entireties was subject to levy and sale in satisfaction of a joint judgment against them.

In the quotation from our original opinion in this case (set out above), we did not say entirety property was held in an 'entity distinct from both husband and wife'. All we said is that such property 'is held by the entity created by marriage.' Because as stated in the above quoted authorities, through a fiction of the common law, husband and wife are regarded as one person. Furthermore, the language from the Sharpe case relied on by appellant herein was used in rejecting the contention that the unity of husband and wife, recognized by the common law is to be regarded as a separate legal entity distinct from the husband or the wife, or both combined, in much the same way the directors and officers of a corporation represent the corporation. We adhere to our statement in the original opinion on this question.

In her petition she further contends that we erred in holding the question of the ownership of the entireties property was before the trial court in this action. She bases this contention on the fact that both the complaint and cross-complaint averred this property was held by the parties as tenants by the entirety. The complaint of appellee asked the court to determine the property rights of the parties. The cross-complaint asked for alimony in the sum of $10,000.

We are of the opinion these allegations were sufficient to not only authorize the trial court but made it its duty to take into consideration the value of this property in adjusting the property rights of the parties.

She next asserts the authorities we cited in support of the proposition that it is the right and duty of the court in such cases to settle and determine the property rights of the parties have no application, because in those cases there was no 'such question' as is presented here. The fact the cited cases did not involve entireties property does not change the principle. We know of no authority which asserts that in such cases the trial court may not consider the value of entireties property in...