194 Ind. 506 | Ind. | 1923
This was an action to subject to the payment of debts of a decedent the entire proceeds of the sale of lands in Mississippi which he owned at the time of .his death, such debts exceeding in amount the personal estate and all of such proceeds, but he having also owned valuable real estate in Indiana and the District of Columbia which was not sold. His widow (the
Overruling the motion for a new trial is the only error assigned, under which appellants rely on the single specification that the finding is not sustained by sufficient evidence. The evidence consisted' of an agreed statement of facts, substantially as follows: That George W. Faris was a resident of Indiana at the time of his death, and his only heirs are his daughter, Ruby F. Tennant, and his childless second wife, Ada R. Faris, who are coadministratrices of his estate, appointed in Indiana; that there was no ancillary administration in Mississippi; that he died the owner of real estate in Indiana worth $20,000, and real estate in Washington, D. C., worth $60,000, which produced an income, and real estate in Mississippi worth $18,000, which produced no income, and was a source of expense; that his personal estate was insufficient to pay his debts, and after the indebtedhess of his estate had been reduced to $35,000 and its personal assets to $5,000, said coadministratrices petitioned for and obtained from the court in Indiana that appointed them an order to sell said decedent’s lands in Mississippi both of said heirs consenting to the sale; that to avoid delay in obtaining an order of sale from a court of probate in Mississippi, said Ruby F. Tennant and Ada R. Faris, as heirs and as coadministratrices, agreed upon a sale of the entire estate in the lands in Mississippi, and a conveyance thereof by the heirs, with a bond to indemnify the purchaser against debts of the ancestor, and that one-half
That the law of the State of Mississippi in regard to the descent of property and the rights of a widow and only child in real estate of an intestate at the time of said sale were as follows: (epitomized by the writer of this opinion) If a husband die childless, the widow shall have his entire estate, real and personal in fee simple, after payment of debts, but if he leave a child or descendants thereof, by any marriage, the widow shall have a child’s part, in fee simple; all personal assets, including accruing rents, shall be chargeable with debts, funeral expenses and expense of administration, and lands of the decedent shall stand chargeable with his debts above what the personal property may be sufficient to pay; such land or part thereof may be sold by the administrators on order of the Chancery Court, upon petition showing a true account of the personal estate and the debts and expenses, and proof of such facts; the whole may be ordered sold if found for the best interests of the estate; if the whole is ordered sold, in excess of what will satisfy the debts, the overplus, after paying debts and expenses, shall be distributed among the heirs according to the law of descent; if found for the best interest of the distributees, the Chancery Court, on petition of the administrator or distributees, may decree a sale of the real estate in preference to the personal estate; all property, real or personal, exempted by law from sale under execution or attachment, shall descend to the widow and child as tenants in common, but if the widow be a childless second wife and shall own a place of residence equal in value to the homestead, the homestead shall not descend to her, but only to the child by a former marriage,
There was no evidence that the law of Mississippi contained any provision for assigning dower to the widow, nor that the common law of England or any part of it on the subject of inheritance or dower was in force in Mississippi, or that the law of Mississippi, as above set out, was subject to control, modification or even explanation by such common law. And, as against evidence that the law of that state is as above recited, we cannot presume that the rights of the widow are enlarged by what appellant’s brief says are the facts (of which, there is no evidence) that dower was once given to a surviving wife by the law of Mississippi, and was abolished when the statute giving her a “child’s part of the estate, in fee simple” was enacted. Much is said in argument about the policy of the common law to reserve to the widow enough of her husband’s lands to afford her support, as against the demands of creditors. But so far as this court is informed, the provision concerning the inheritance of property of a decedent exempted by law from sale under execution or attachment may have been intended by the law of Mississippi to make provision for the widow of a resident of the state who did not have a home of her own equally as good, and it may have been the policy of the State of
Therefore, the great number of authorities cited by counsel from jurisdictions in which widows were entitled to dower, or were given by statute an interest in the deceased husband’s lands which the statute provided should not be subject to the demands of creditors, are not controlling.
As above set' out, the statutes of Mississippi make all of the property of a nonresident decedent, both personal and real, chargeable for his debts, and liable to be subjected thereto, and give to the widow only “a child’s part of his estate * * * in fee simple”, but without any provision, so far as the evidence discloses, for giving the. widow of such nonresident anything more than a child receives. And if the widow receives only an equal part with the child of her husband, she cannot have any preference by which one-half of his real estate can be reserved to her, discharged from the demands of creditors, while the other half is consumed in paying debts, so that the “child’s part” received by the daughter is nothing at all, while that received by the widow would amount to thousands of dollars. The trial court properly adjudged that the widow’s share of real estate situated in Mississippi, sold for the payment of debts of a nonresident owner, is no greater than the share of his daughter, and that her share, equally with
The judgment is affirmed.