60 Ind. App. 99 | Ind. Ct. App. | 1915
This suit was brought for partition and to quiet title to real estate. The undisputed facts show that Eobert Andrew died intestate, the owner of the real estate in controversy, and left as his only surviving relatives, certain first, second and third cousins. The amended petition for partition was filed by certain second and third cousins against appellants and a large number of persons, some of whom were alleged to have no interest in the real estate, but it was further alleged that the plaintiffs and a large number of the defendants were the owners in fee simple as tenants in common of the real estate which is the subject of the litigation. The complaint contains the necessary averments to authorize a judgment quieting the title against certain defendants and alleged that the real estate was not susceptible of division without damage to the several owners, who were alleged to own undivided portions thereof in various proportions, from an one-seventeenth to an one two-hundred-thirty-eighth interest therein. The appellants answered this complaint by general denial. On the issues so formed, the cause was submitted to the court, which found for the plaintiffs and rendered judgment quieting title against certain defendants and made a general finding that the plaintiffs and other defendants, including appellant, Elwood Avery, are the owners in fee simple, as tenants in common, of all the real estate described in the complaint, and that the same can not be divided among the several owners without damage, and ordered that the same be sold and appointed a commissioner to make the sale.
The court did not find and adjudge the interests of the several tenants in common of the land, but
The land was sold and the funds were paid to the clerk in pursuance of the foregoing decree. The order of sale was made December 19, 1912, and in January, 1914, appellant Elwood Avery, filed his petition asking that the funds be distributed and that all the net proceeds from the sale of the land be paid to the living first cousins of the decedent, as his sole and only surviving heirs under the statute of descents. A like petition was filed by appellant, Daisy Avery, alleging that she was an assignee of Elwood Avery, and had an interest in the funds to be distributed. The appellees filed a cross-complaint in which it was alleged in substance that second cousins whose parents were dead, and third cousins whose parents and grandparents were dead were entitled to inherit by representation. The appellants answered the cross-complaint by general denial and the issues so formed were then tried. The par
Appellants filed a motion for a new trial, as of right; and also for cause, both of which were overruled. From the judgment rendered on the foregoing conclusions of law, appellants have appealed and separately assigned errors in the conclusions of law stated on each finding of facts; in overruling the separate motions of appellants for a new trial as of right; and in overruling the motion for a new trial for cause.
The questions presented by the briefs relate to appellants’ right to a new trial as of right, and to the conclusions of law. The findings show the source of the title, that all the parties claim to inherit from Robert Andrew, deceased, and show that he left surviving him ten -living first cousins, including appellant Elwood Avery, and numerous second cousins, the children of deceased cousins and several third cousins, the children of a deceased second cousin. No question, is made about the correctness of the findings and it is conceded by appellants that if on the facts found second and third cousins are entitled to share at all in the estate, the judgment is right, but it is earnestly insisted that the living first
This we believe to be the plain meaning of the statute and we are confirmed in the view by the language quoted with approval in Cloud v. Bruce, supra, 180, where these sections were discussed as follows: “While the principle of representation is one that has always been favored by the civil law, and is in accordance with the genius of our statute, it is not one to be applied in every conceivable case, and it is only to be used where the terms of the succeeding sections of the statute make it applicable. * * * ‘The . fourth section affords another instance where the application of the rule is expressly provided for. The latter part of the fifth section does
While it is true the facts in the foregoing ease were not identical with those of the case at bar, yet the court considered the identical section here under consideration with a view of ascertaining the meaning of the several sections and gave special consideration .to the question of representation as embraced in the several sections and concluded that it did not apply to that part of §5 of the act of 1852, supra, §2994, supra, which casts the estate upon “the next of kin, in equal degree of consanguinity,” upon the failure of a class, viz., uncles and aunts — and the descendants of such as are dead — which means descendants of deceased uncles and aunts where some of the class are still living, but has no application where the
The policy of excluding the rule of inheritance by representation, or per stirpes, when the estate is taken by collateral kindred, is generally approved in other jurisdictions, and most of the states have statutes on the subject, some of which do not extend the rule as far as it is applied in Indiana. The decided weight of authority denies, or very greatly limits, the application of the principle where the estate is taken by collateral kindred, and the policy prevails generally of stopping the line of inheritance at the first, or some other designated class, of collateral kindred, who survive the ancestor and are capable of inheriting the estate. Cox v. Cox, supra; Douglas v. Cameron (1896), 47 Neb. 358, 66 N. W. 430; Clary v. Watkins (1902), 64 Neb. 386, 89 N. W. 1042; Adee v. Campbell (1878), 14 Hun 551; Adee v. Campbell (1879), 79 N. Y. 52; In re Davenport (1902), 172 N. Y. 454, 65 N. E. 275; In re Oatley’s Estate (1914), 83 Misc. 655, 146 N. Y. Supp. 796; Davis v. Vanderveer (1872), 23 N. J. Eq. 558; Schenck v. Vail (1873), 24 N. J. Eq. 538, 542; Van Cleve v. Van Fossen (1889), 73 Mich. 342, 41 N. W. 258, 259; Brenneman’s Appeal (1861), 40 Pa. St. 115; 27 Am. and Eng. Ency. Law (2d ed.) 322, 325 and cases cited in notes; 14 Cye 52, 53 and eases cited.
Our conclusion on the question of inheritance makes it unnecessary to discuss the other questions presented and disposes of the whole case. The judgment is therefore reversed with instructions to the trial court to restate its conclusions of law on the
Note. — Reported in 108 N. E. 599. Rules of construction, of statutes, see 12 Am. St. 826. On right of persons claiming through deceased relative to participate with those standing in equal degree of relationship with such relative in provision for “next of ldn,” etc., see 28 L. R. A. (N. S.) 479. Construction together of contemporaneous statutes in pari materia, see 18 Ann. Cas. 424; Ann. Cas. 1915 A 186. See, also, under (1) 36 Cyc 1128; (2) 14 Cyc 16; (3) 14 Cyc 51.