182 Ind. 289 | Ind. | 1914
The appellant, John W. Bruns, was a brother of Charlotte Cope, who died intestate, in November, 1911,
Section 26, of an act regulating descents, passed in 1852, provides that “If a husband or wife die intestate, leaving no child and no father or mother, the whole of his or her property, real and personal, shall go to the survivor.” 1 R. S. 1852 p. 248, §2490 R. S. 1881, §3028 Burns 1914. By an act approved March 4, 1853 (Acts 1853 p. 55, §4), the legislature attempted to amend §26, supra, of the descents act, to read as follows: “If a husband or wife die intestate, leaving no child, and no father or mother, nor brothers and sisters, nor their descendants, the whole of his or her property, real or personal, shall go to the survivor.” Appellant claims this amending act is in effect, and that under its provisions two-thirds of the decedent’s realty descended to her surviving brothers and sisters. In Langdon v. Applegate (1854), 5 Ind. 327, this court held that, by virtue of §21 of Art. 4, of the Constitution of Indiana, which provides that “No act shall ever be revised or amended by mere reference to its title; but the act revised, or section amended shall be set forth and published at full length,” an amending act which failed to set out the section amended was void. The act of March 4, 1853, attempting to amend §26, supra, of the descents act, failed to set forth said §26, and, after the decision of Langdon v. Applegate, supra, it was deemed as unconstitutional and void. At the November term, 1867, in Greencastle, etc., Turnpike Co. v. State, ex rel. (1867), 28 Ind. 382, this court overruled the case of Langdon v. Applegate, supra, but in
Appellant’s third contention is founded on the alleged error in the sustaining of the demurrer to the seventh, eighth and tenth, paragraphs of complaint. In the latter paragraph it is alleged that Charlotte Cope and appellant Daniel C. Cope, on July 10, 1911, procurred a marriage license, and, on the same day a pretended marriage was solemnized between them; that at the time, and previous thereto, Charlotte Cope was of unsound mind and incapable of entering into a marriage contract, all of which appellee Cope well knew, and because of said facts the pretended marriage was void. It is further averred that Charlotte Cope died in November, 1911, owning certain described real estate, and leaving surviving her neither ancestor nor descendant, but leaving appellant, a brother, and certain named defendants, other than appellee Cope, as her only heirs at law; that the named heirs are the owners in common of the real estate, but that appellee is claiming, without right, some interest in the land. The paragraph closes with a prayer for partition and to quiet the title of the alleged heirs against the alleged unfounded claim of appellee. The allegations of the seventh and eighth paragraphs differ somewhat from those of the tenth, but, in his brief, appellant presents no question in regard to them, that would not apply to the ruling on the tenth, and therefore there is no occasion for considering any difference between the allegations in that paragraph and those of either of the others. It is not alleged that decedent was ever adjudged a person of unsound mind or incapable of managing her estate, nor is it averred that the marriage was ever ‘annulled or decreed void in any proceeding instituted for that purpose. The action is one for partition and to quiet title, under the’ statute, and if the complaint is sufficient, would
The act of March 4, 1911 (Acts 1911 p. 415, §344 Burns 1914), among other things amends §85 of, our code of civil procedure, and provides that when, in a demurrer to a complaint, it is averred that it does not state sufficient facts, a memorandum shall be appended stating wherein the complaint is insufficient, and that the demurring party shall be deemed to have waived his right, thereafter, to question the pleading for any defect not specified in the memorandum. Appellant claims that appellee’s memorandum here fails to disclose any reason that can furnish a basis for sustaining the demurrer to the complaint, and that this court, in reviewing the action of the trial court is limited to the specifications of the appellee’s memorandum. This contention cannot prevail. Had the court overruled the demurrer to the complaint, and were appellee here assailing such ruling, this court, by reason of the act of 1911, would be precluded from reversing the judgment because of such ruling of the court, except on some ground specified in the memorandum. But the act of 1911, amending §85 of the code, must be construed in connection with the other sections thereof, and particularly §659 (§700 Burns 1914, §658 R. S. 1881), which provides that this court shall reverse no judgment where it appears that the merits of the cause have been fairly determined in the court below. Amendments or repeals, by implication, are not favored, and we do not believe that the provisions of §700 Burns 1914, supra, were intended to be modified in any way by the act of 1911, and consequently if the ruling assailed here was right on the merits, the judgment should be affirmed regardless of the absence of appropriate specifications from the memorandum filed.
Note. — Reported in 105 N. E. 471. As to the question of the presumption from marriage ceremony is discussed in 14 L. R. A. 540; 16 L. R. A. (N. S.) 98; 34 L. R. A. (N. S.) 940. As to the succession by a murderer to the property of his victim, see 2 Ann. Cas. 658; 14 Ann. Cas. 99. As to who are entitled to succeed to estates of intestates, see 12 Am. St. 82. See, also, under (1) 14 Cyc. 63, 69; (2) 14 Cyc. 61; (3) 14 Cyc. 16; (5) 26 Cyc. 877; (6) 3 Cyc. 443.