54 Ind. 225 | Ind. | 1876
Elizabeth Cool, the appellee, brought suit against the appellants, devisees under the will of Christopher Cool, deceased, for partition of the real estate described in the complaint. She» alleged in her complaint that on the fifteenth day of February, 1874, Christopher Cool, being then the owner of said real estate, devised the same, by his last will, (a copy of which is made an exhibit,) to the plaintiff, Elizabeth, now his widow, during her natural life, and at her death to the children of his brothers, John and Thomas Cool, and of his sister, Catherine Thrall, share and share alike. Plaintiff further avers that said Christopher Cool left the plaintiff, his widow, but no child, surviving him. Plaintiff' avers that, at the proper time, she elected to take under the law and not under the will. She asks that one-third of said real
In a second paragraph the plaintiff’ states that she and the defendants are tenants in common of the real estate described in the first paragraph, that she has an estate in fee in one undivided third, and a life-estate in the other two-thirds; that the defendants have an estate in fee in the other two-thirds, subject to her life-estate in the same, but their particular several shares are unknown to her, and she prays partition according to the rights of the parties, and if said partition can not be made, then a sale, etc.
The will is somewhat lengthy, and we set out, therefore, only the parts of it by which, counsel on both sides admit, the rights of the parties are to be determined in the real estate described in the complaint, and must control the decision of this cause, in connection with the extrinsic facts in the case.
The first clause of the will is as follows:
“ Item the First. I give, bequeath and devise unto my beloved wife, Elizabeth Cool, all my property, both real and personal, including all moneys, rights, credits and effects, to her as long as she remains my widow.”
The third clause is as follows:
“ Item, the Third. 1 direct that after the death of my said wife, Elizabeth Cool, that my property shall be divided among the children of my brothers, John Cool, Thomas Cool, and the children of my sister, Catherine Thrall, deceased, who are to take share and share alike, except as to the share of the daughter of my sister, Catherine Thrall, deceased, Mary Hodson, who shall take as provided in item second of this instrument.”
The exception referred to has no bearing on the' rights of the parties to this suit.
The will contained no residuary clause.
The defendants answered in general denial, and in a second paragraph, in which they admitted the allegations
The court sustained a demurrer to the second paragraph of the answer, and the defendants excepted. The cause went to trial upon the general denial, and the court found that said plaintiff and defendants are the owners in common of the premises described in the complaint; that the plaintiff is the owner in fee of the undivided one-third part of said premises, and is entitled to a life-estate in the residue thereof, and that partition ought to be made as prayed for in the complaint; and the court ordered and decreed accordingly. Commissioners were appointed to make the partition. Partition was made according to the finding of the court as to the rights of the parties. A motion for a new trial was made, on the alleged ground that the decision of the court, in decreeing partition, was contrary to law, and that the court erred in sustaining the demurrer to the second paragraph of answer. The motion was overruled, and the partition made was confirmed. .
The action of the court upon the demurrer was not a ground for a new trial.
The evidence is not in the record.
The errors assigned in this court are:
1. The court below erred in sustaining the demurrer to the second paragraph of answer.
2. The decision of the court in decreeing partition was contrary to law.
3. The court erred in overruling the motion for a new trial.
It would have been the better practice to move to strike out the second paragraph; but no harm was done to the
The second assignment of error is one of the grounds alleged below, in the motion for a new trial. It was a proper cause to allege for a new trial. It was, substantially, the sixth ground specified in the statute. 2 R. S. 1876, p. 181. Whether the decision of the court in decreeing partition was contrary to law might have depended upon the evidence. ' That was before the court and that tribunal could reconsider it on the motion; but it is not before this court; and were it, this assignment of error would still he but a species of tautology, as it is embraced by the next assignment, viz., that the court erred in overruling the motion for a new trial. But as neither the evidence in the cause, nor any interlocutory ruling during its progress, which might have been cause for a new trial, is in the record, we can hot reverse the case on this assignment of error.
The evidence might have disclosed a state of facts that would have justified the decree for partition as it was made.
Section twenty-six of our statute of descents, 1 R. S. 1876, p. 413, enacts 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.”
And if he or she die intestate, as to a part of the property, this statute applies, and governs the disposition to be made of such part. Armstrong v. Berreman, 13 Ind. 422. Counsel for appellants do not claim, but tacitly admit, that the testator left no father or mother. Was there
The judgment is affirmed, with costs.