Gaylord v. Dodge

31 Ind. 41 | Ind. | 1869

Elliott, J.

Tenancies in dower, having been abolished by statute, no longer exist in this State. The rights of a surviving wife in the real estate of her husband are those created by statute alone, and hence the question presented here must be determined by reference to the provisions of the statute on that subject.

These rights, so far as they are involved in this case, are defined by sections 17 and 27 of the statute of descents, which are as follows:

“ Sec. 17. If a husband die 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; Provided, however, That where the real estate exceeds in value ten thousand dollars, the widow shall have one-fourth only, and where the real estate exceeds twenty thousand dollars, one-fifth only as against creditors.”

“Sec. 27. A surviving wife is entitled, except as in section 17 excepted, to one-third of all the real estate of which her husband may have been seized in fee simple, at any time during the'marriage, and in the conveyance of which she may not have joined, in due form of law; and also of all lands in which her husband had an equitable interest at the time of his death,” &c.

There' is no conflict between these sections when construed together. Section 17 defines the rights of the widow as against creditors; whilst the 27th section recognizes the exception made in favor of creditors in section 17, and defines the rights of the surviving wife as against heirs and purchasers either from or through the husband in his lifetime, and defines the nature and character of the estates and interests held by her husband in which she is entitled to share.

In the case now before us,no question is presented as to creditors; and, hence, we must look to section 27 in determining the nature of the estate or interest that must have been held by the husband in the land, to entitle his surviving wife to a share therein. That section declares that she is entitled to one-third of all the real estate of which her husband may have been seized in fee simple, at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law; and also of all lands in which her husband had an equitable interest at the time of his death.

Here, the land in controversy was conveyed by White, not to the decedent, but to Joshua 0. Dodge; but it is claimed by the appellee’s counsel, that, by virtue of that conveyance, Hathan B. Dodge, the decedent, became seized in fee of the.property. The argument in support of this proposition is, that the conveyance to Joshua 0. Dodge was in trust; that his title was á nominal one merely; that the property was subject to the exclusive use, control, andyws diéponendi of his father, Hathan B. Dodge; and that the 18th section of the act concerning trusts and powers (1 G. & H. 652) executed the use, and invested Hathan B. Dodge as cestuy que use with the fee simple.

The provision referred to reads as follows:—

“A conveyance or devise of lands to a trustee whose titlev is nominal only, and who has no power of disposition or) management of such lands, is void as to the trustee, andl shall be deemed a direct conveyance or devise to the beneficiaiy.”

In this case the deed from White to Joshua 0. Dodge is-an absolute conveyance in fee. It contains no declaration-of trust in favor of any one'. And though the purchase money was paid by Hathan B. Dodge, and the conveyance was made by his direction to Joshua 0. Dodge, without-any consideration being paid therefor by the latter, still,- under’ section 6 of the act just referred to, no use or trust resulted therefrom in favor of Hath an B. Dodge.

The 13th section of the act, copied above, clearly applies - where the trust is expressly declared and the beneficiary-named in the conveyance, the title of the trustee being;nominal only. In that case the statute operates on the-conveyance itse'lf, and executes the use, by declaring, the-conveyance void as to the trustee and holding it to baa direct conveyance to the beneficiary; but it is difficultrto -see how it can apply so as to invest the legal estate in the beneficiary when the conveyance is absolute on its face and neither declares a trust nor names a beneficiary. But we1 need not decide that question. As stated above, the payment of the purchase money by Nathan B. Dodge did not raise a resulting trust in his favor; and in the absence of a declaration of trust by Joshua C. Dodge, or an agreement by him to hold the land in trust, the conveyance by White to him would invest him with an absolute estate in fee simple. We must therefore look to the letter of Nathan B. to Joshua C. Dodge and the response of the latter thereto, to ascertain the nature of the trust created thereby as well as the beneficiaries.

It is insisted by the appellee, that the letters referred to show that Joshua C. Dodge held but a naked title to the property, whilst Nathan B. Dodge, Sr. was the beneficiary and entitled to its exclusive use, control, aud disposition. We find nothing in the letters to warrant such a conclu,-sion; nor do we see how it is'possible to place such a construction upon them.

In his letter, Nathan B. Dodge, after describing the property purchased of White, and the terms of the purchase, mays: “I have had a deed made out to you for the property 'where he” (White) “lives, that is, the cottage and the large Rouse, 145 feet on Columbia street.” * * * “The property that is deeded to you is worth about $8,500, and that I ■ shall want a deed from you in a few days to Mrs. GaylorcVs < children and Mrs. Chadwick’s. I shall send on a deed for you to sign in a few days. The property is now in your mame, and I wish you would tell your wife how it is situated mow, that she would know all about it if you should be taken.away; and if I should, I want that property that is ■ deeded to you to be made over to the four children, the rents .and.profits to be paid them yearly for their support, and when they become twenty-one years of age to have the property in fee simple, to dispose of as they please. I think I RaveRought the White property very low. It cost him .-sixteen thousand dollars, and as property is all the time advancing, it must bring that again; but I shall not sell it, as it iis in a good location, and loillletdheehilclren have it.” To this Joshua C. Dodge responded, accepting the trust as declared in the letter to him.

B. Jones, S. A. Huff, B. W. Langdon, and B. P. Banneg, for appellants. ■ J. A. Stein, W. C. Wilson, and Z. Baird, for appellee.

There is certainly nothing in these letters creating a trust in favor of Nathan B. Dodge, the decedent, or conferring on him the right to the use, control, or disposition of the property. We think they did create a trust in favor of the children of Mrs. Gaylord and Mrs. Chadwick, which a court of equity would have enforced.

It is true, that Joshua C. Dodge did not execute the trust according to the terms of the agreement, but, at the request of the decedent, conveyed the property to him for life and then in separate parcels to Mrs. Gaylord and Mrs. Chadwick for life, with remainders to their children in fee. This variation, however, did not in any wise affect the rights of the appellee, and therefore affords to her no cause of complaint.

From the view thus taken of the case, we conclude that Nathan B. Dodge was not, at any time during the coverture, seized in fee simple of the premises in controversy, nor had he any equitable interest therein at the time of his death, and hence, that no interest therein descended from the decedent to the appellee, under the statute.

We think the evidence did not sustain the finding of the court, and for that reason a new trial should have been granted.

The judgment is reversed, with costs, and the cause remanded for a new trial, and for further proceedings in accordance with this opinion.

Gregory, J., was absent.