25 Ind. 10 | Ind. | 1865
One David B. Myers, on the 25th of June, 1861, died intestate, seized of certain real estate in Miami county, leaving Martha A., his widow, and the appellees, Ins children, his heirs at law.
Ira B. Myers, one of the children, on the 9th of November, 1863, filed his petition in the court below, against the widow and the other children, for partition of the real estate. On the 26th of thaf month, the court rendered an interlocutory decree of partition, giving to the widow one-third of the real estate, and to each of the children one-twelfth, in fee, and appointed commissioners to set off the same. The commissioners reported at that term, that they had assigned to the widow, as a part of her one-third, a lot in Peru, which they valued at $800, and that the residue of the real estate could not be divided without injury to the parties. The court decreed a sale of that part so reported indivisible, and appointed a commissioner to make the sale. On the 24th of December, 1868, the widow intermarried with George W. Goodrich. The commissioner, on the 7th of February, 1865, sold the real estate embraced in the order of sale for $7,584 30 and reported the sale to the court, where it was confirmed. The commissioner reported $3,500 in his hands, arising from .the sale, for distribution'^
The only question raised is, did the court below do right in making this order ?
By the statute of descents it is provided that, “ 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;” * * * 1 Gr. & H., § 17, p. 294.
It is further provided that, “ If a widow shall marry a second or any subsequent time, holding real estate in virtue of any previous marriage, such widow may not, during such marriage, with or without the assent of her husband, alienate such real estate, and if, during such marriage, such widow shall die, such real estate shall go to her children by the marriage in virtue of which such real estate came to her, if any there be.” Id. § 18.
In the case of Newby v. Hinshaw, 22 Ind. 884, this court held that where a widow, as the heir of her husband, becomes the owner in fee of real estate, under the provisions of sections 17 and 18, of the act regulating descents, whilst she remains his widow she has the legal right to alienate such real estate, and such alienation will convey a perfect and absolute title, and if she sell by title bond, and put the purchaser in possession, and then marry again, she may, after such marriage, be compelled to specifically perform such contract by conveying the legal estate; the court construing section 18 as a restraint on the power of alienation only, holding that the fee simple goes absolutely to the widow. . •
In the case of Philpot et al. v. Webb, 20 Ind. 509, W died, in 1859, seized in fee of certain real estate, leaving, as his heirs at law, a widow and children. In 1860, the widow
The order is improper, in any view of the case. A married woman could not be bound by the bond required, and therefore she could not be the principal therein as contemplated ; and the order might deprive her of her undisputed right to the proceeds, of the fund, by tying it up in court to await a compliance with a condition wholly beyond the power of one laboring under disability. The order is wrong in charging the widow with §800, to be deducted from her third of the residue of the fund, because one third of the §800 belonged to the widow, as heir to her late husband. The §800 should be added to the net proceeds of the sale of the residue of the real estate, one third of such aggregate is the amount to which the widow was entitled, eight hundred dollars deducted therefrom gives the sum to which she will be entitled on the final distribution.
The order of tbe court below, directing tbe payment to Martha A. Goodrich, is reversed, with costs, and tbe cause remanded to said court, with directions to order tbe payment to said Martha A. Goodrich of her portion of said money, without any condition annexed.