25 Ind. 104 | Ind. | 1865
Replevin, commenced before a justice of the peace, by the appellee against the appellant.
The complaint alleged that the property involved was of the value of $118, and $20 damages were claimed for the detention thereof. Motion .to dismiss for the want of juris•diction overruled.
The plaintiff’s intestate died on the 11th of January, 1863, leaving property of the value of more than $300. The widow of the deceased took possession of the property in controversy without any administration having been granted on her husband’s estate, and held it until her death, which occurred on the 11th of October, 1864. After the death of the widow, administration was granted to the plaintiff of the estate of the husband. The defendant is the administrator of the estate of the deceased widow. It is claimed by the appellant that the property, after the death of the husband, vested in the widow, without administration on the estate of the deceased husband. We do not think so. Under the statute the widow had the right, “ before any distribution, to $300 of the personal property of her deceased husband, to be selected by her at its appraised value.” 1G-. & H., § 21, p. 295. It is further provided that “ the widow, at any time before the return of the inventory, may select and take
Taking these statutory, provisions together it is clear, that before the property can vest in the widow there must be an appraisement, in the course of administration, and a selection by her under such appraisement.
The court below committed no error in holding that the property did not vest in the widow.
On the trial, the defendant offered his wife as a witness, and proposed to prove by her that the property in controversy was her' separate property.
The court below refused to permit the wife to testify, and this is assigned for error. The wife was not joined in the action, she was no party to the suit, and the judgment when rendered could in no wise affect her rights. If the pro|)erty was her separate property, she could have maintained a suit in her own name. . The defense of property in another was a bar to the action of replevin, and the testimony offered was for the husband, and not for the wife, and the witness was within the provision of the statute that “ husband and wife are incompetent witnesses for or against each other.” 2G.& II., § 240, p. 170; Acts of 1861, § 3, p. 52.
The court below committed no error in rejecting the testimony of the witness offered.
The defendant offered to prove that he held the property as the administrator of the deceased widow, but the court ruled out the evidence. This was right. If the property was in the plaintiff, it was immaterial in what capacity the defendant held it; he was alike bound to render the property to the rightful owner, whether he held it as administrator or in his own right.
The judgment is affirmed, with costs.