186 Ind. 680 | Ind. | 1917
This is an appeal from a judgment for appellees in an action instituted by appellant for the partition of certain real estate in Lake county. The property in question was owned by Anna E. Hill, wife of appellant, at the time of her death and then passed as a common estate to appellant, as her surviving widower, and appellee Harry Taylor, her son by a former marriage, unless, as is contended by appellees, the question of descent is affected in this case by the provisions óf §3036 Burns 1914, §2498 R. S. 1881. That statute provides that “if a husband shall abandon his wife without just cause, failing to make suitable provision for
In support of his assignment that the superior court erred in overruling his motion for a new trial, appellant earnestly insists that the verdict of the jury on the issue of abandonment is wholly without support in the evidence.
On the other hand, witnesses for appellant testified that Mrs. Hill’s mother and stepfather were aged people and that she went to their home to care for them and for an invalid sister; that appellant, on a number of occasions, came to the house to see her and she visited him at Lowell, and, on such occasions, they remained days and nights together; that they were at times together in public, and that they frequently made use of neighbors’ telephones to call each other. None of this testimony is expressly disputed by appellees and it is, in a sense, corroborated by an affectionate note written by Mrs. Hill to her husband on the occasion of his birthday some three or four months before her death. She died in March, 1913, following an operation in a hospital in Chicago, and it is admitted that appellant accompanied her to Chicago and was with her during her sickness there and paid her hospital expenses. There is testimony also to the effect that she stated at the hospital that they would resume housekeeping as soon as she was well.
However, to consider only that evidence which tends to support the verdict of the jury, it is sufficient, at most, to show nothing more than a separation by mutual consent. There is no evidence whatever that appellant at any time left the home of the parties and it is apparent from the evidence introduced by appellees that when Mrs. Hill moved to Crestón, appellant assisted her in carrying to her mother’s home certain articles of furniture for use in her. room. In brief, the evidence fails to show an abandonment within the meaning of the statute and the verdict of the jury must, therefore, be set aside. Keesey v. Keesey (1911), 160
Other questions as to the admissibility of evidence and . the sufficiency of certain instructions will probably not arise on a retrial of the issues and need not be considered. The death of appellant being suggested, the judgment is reversed as of date of submission, with instructions to sustain appellant’s 'motion for a new trial and for further proceedings not inconsistent herewith.
Note. — Reported in 117 N. E. 930. See under (3) 29 Cyc 924; (4, 5) 14 Cyc 83; (5) 14 Cyc 699.