30 Ind. App. 360 | Ind. Ct. App. | 1903
The appellee, administrator de bonis non of the estate of Herman N. Coffinberry, deceased, brought his action in replevin against the appellant "William IT. Coffinberry, who questions here the correctness of the court’s conclusions of law upon the facts specially found, in substance as follows: In the year 1897, the appellee’s intestate died in DeKalb county, leaving surviving him his widow and his two minor sons, one of them the appellant. At the time of his death the intestate had been living with his wife and children in the family relation. Immediately after his death, one John Yarde was appointed administrator of his estate, and he continued to act as such until the death of said Yarde, whereupon the appellee was appointed as administrator de bonis non. The estate of the intestate is insolvent. Eor some years prior to 1886, the intestate resided
The court stated as conclusions of law upon these facts, that at the beginning of this action the appellee was entitled1' to the possession of the diamond stud, the gold ring with diamond setting, the gold watch and chain and the watch-charm, described in the complaint, a separate conclusion being stated as to each article; also that all the property described in the complaint was at the commencement of the action unlawfully detained by the appellant. ■
In our statute concerning decedents’ estates, is the following: “Where a man having a family shall die, leaving a widow or minor child, the following articles shall be omitted in making the inventory, and ghall not be considered as assets, viz.: First. All articles of apparel and ornament of the widow and of the children of the deceased. Second. The wearing apparel of the deceased; which shall be dis
It is apparent from the special finding that the appellant’s possession was derived from supposed conformity to this statute; and our decision, having due reference to the theory óf the case in the trial court, must involve a construction of that statute, as did the decision of the trial court. The widow did not assume to take possession of the articles in question as her own property, to which she was entitled as widow, and the finding does not show title or right of possession, or any claim therefor in any person oilier than the appellant or the appellee. The appellant holds the articles distributed by the widow to him as a nearest relative, upon the assumption that they were part of the “wearing apparel of 'the deceased,” within the meaning and intent of the statute above quoted, and we are required to decide whether or not they constituted such “wearing apparel.” This is not a technical phrase “having a peculiar and appropriate meaning in law,” and it is to be taken in its “plain or ordinary and usual sense.” §240 Burns 1901.
The word “apparel” and the phrases “wearing apparel”- and “necessary wearing apparel” occur in statutes having various general purposes, as statutes relating to exemption from seizure on execution, and statutes concerning duties on imports, and they have been variously interpreted by the courts. We are not here influenced in our decision by any consideration as to whether or not any of the articles was necessary or more or less useful to the deceased, or as to whether or not it was intrinsically of great or little value, except as its expensiveness, considered in connection with its use, makes the chief characteristic that of an ornament.
In re Jones, 97 Fed. 773, was a case in bankruptcy. The court, professedly following the most liberal interpretation of the exemption statute of Wisconsin, held that a gold watch and chain carried on the person in the mode of ordinary usage was within the meaning of the phrase “all wearing apparel,” and was therefore exempt. See, also, Stewart v. McClung, 12 Ore. 431, 8 Pac. 447; 53 Am. Dec. 374; Beckett v. Wishon, 5 Ohio N. P. 155; In re Steel, 2 Flip. 324, 22 Fed. 1202; Sellers v. Bell, 36 C. C. A. 502, 94 Fed. 801.
In Richardson v. Buswell, 10 Metc. (Mass.) 506, 43 Am. Dec. 450, it was held that cloth and trimmings left at a tailor shop by a debtor, to be made into a coat necessary for him, were within a clause of a statute exempting from execution “the necessary wearing apparel of the debtor.” See Peverly v. Sayles, 10 N. H. 356.
In Frazier v. Barnum, 19 N. J. Eq. 316, 97 Am. Dec. 666, the question being as to whether certain things were
In‘re Graham, 2 Biss. 449, was a petition by a bankrupt for an order directing the assignee to add certain articles to the list of exempted property. It was held that a watch, not being exempt by the law of the state (Wisconsin), did not properly come within the, discretionary articles contemplated by the bankruptcy act.
In Rothschild v. Boelter, 18 Minn. 361, a watch and chain were held not exempt from execution under the statute as “wearing apparel of the debtor and his family.” It was said: “But that an article may he worn does not make it wearing apparel within this statute. The words are to be construed, in this case, according to the common and approved usage of the language (Gen. St. ch. 4, §1), namely, as referring to garments or clothing generally designed for wear of the debtor and his family.”
In Smith v. Rogers, 16 Ga. 479, it was said that among the articles exempted from execution by statute, watches were not found, unless they came under the head of “wearing apparel.” “It is doubtful whether they can be made to come under that head. If, however, they can, Ave think that not more than one can be made to do so. And one, and the best one,” claimed by his wife, “the court alloAved to be exempt in this case.”
In Gooch v. Gooch, 33 Me. 535, it was said that a watch which a testator had been in the habit of carrying upon his person did not pass by a bequest of his wearing apparel. The court said: “The ordinary meaning of wearing apparel is vesture, garments, dress; that which is worn by or appropriated to the person.”
In Sawyer v. Sawyer, 28 Vt. 249, under a statute by
' Although all the articles here in question were adapted to be worn on the person, we are of the opinion that none of them should be regarded as wearing apparel, within the meaning of the statute involved in the case. So far as the watch could be said to have been useful as well as ornamental, its use was not of such a character as to distinguish it as a part of the apparel. The watch-chain was an appendage belonging with the watch. The shirt stud did serve a useful purpose in connection with the clothing, when the shirt worn was of a particular kind, but its expensive diamond made it chiefly and distinctively an ornament. The ring and charm were beyond question articles of ornament.
Judgment affirmed.