151 Ind. 102 | Ind. | 1898
This was an action in ejectment and to qniet title, brought by appellants against appellees. The court made a special finding, and stated conclusions of law thereon in favor of appellees, and rendered judgment against appellants. It appears from the special finding that one Joseph Bouchie, in 1856, died intestate, the owner in fee simple of real estate in Knox county, Indiana, leaving surviving him as his only heirs, his widow, Mary Bouchie, a second wife, by whom he had.no children, and one Peter Bouchie, his son by a former marriage. Afterwards, on September 6, 1857, said Mary Bouchie, for a valuable consideration, sold, and by quitclaim deed conveyed, said real estate, which she held as widow of said Joseph Bouchie, deceased, to one August Delisle, who then took possession thereof, claiming to own it in fee simple. On January 5, 1858, the said August Delisle and wife and the- said Mary Bouchie, for a valuable consideration, sold, and by warranty deed conveyed, all the real estate which the said Mary Bouchie conveyed to the said August Delisle to one James Reynolds, who then took possession thereof, claiming to own the same in fee.
At the September term, 1858, of the Knox Common Pleas Court, in an action for partition, brought by said James Reynolds against said Peter Bouchie and his guardian, Vetal Bouchie, the land in controversy was set off to said James Reynolds as the owner thereof in fee. Afterwards the said James Reynolds sold, and by warranty deed conveyed the real estate set off to him, being the real estate in controversy, to one Cassell, who took and held possession thereof,
Section 2483, R. S. 1881, provides that if a husband dies 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, with a proviso reducing her interest as to creditors if the real estate exceeds in value $10,000, etc. Section 2486, R. S. 1881 provides that if a husband dies intestate, leaving a widow and one child, his real estate shall descend one-half of it to the widow and one-half to his child. It is provided in section 2487, R. S. 1881, that if a man marries a subsequent or second wife, and has by her no children and dies leaving children alive by a previous wife, the land, which at his death descends to such wife shall at her death descend to his children by the previous wife. Under said sections it was held in Martindale v. Martindale, 10 Ind. 566, decided in 1858, that a second or subsequent wife took a life estate only in the lands of her deceased husband, when he
It follows, therefore, that the estate which Mary Bouchie inherited in the real, estate of her husband was a fee simple, and during her lifetime Peter Bouchie, the child of her husband by a former marriage, had no estate or interest therein, but only an expectancy to take the same as her forced heir at her death. No conveyance she could make would deprive him or his descendants of this right, if they or any of them survived her. As he died before the widow, leaving no child or children or their descendants surviving him, at her death, if she then owned said real estate, or any interest therein, inherited from her said husband, it would have descended to her heirs if she died intestate. It is clear, therefore, that appellants, the brother and nephews and nieces of Joseph Bouchie, the husband of Mary Bouchie, and father of Peter Bouchie, did not inherit said real estate, or any interest therein, from said Peter Bouchie, because he had no title thereto at the time of his death; nor did they inherit the same or any interest therein from Mary Bouchie, as her forced heirs, because they were not made such by statute.
It is true that it was held by this court in Haskett v. Maxey, supra, that if, prior to 1881, at a time when
It is settled law, therefore, that at all times since the same was enacted the childless second or subsequent wife took a fee' simple, and not a life estate in the lands of her deceased husband. To this rule there is no exception, and it was only held in Haskett v. Maxey, supra, that the change in the construction of said statute could not impair ^the obligation of any contract made before the case of Utterback v. Terhune, supra, was decided. Finding no error in the record, the judgment is affirmed.