44 Ind. App. 590 | Ind. Ct. App. | 1909
Lead Opinion
The questions presented in this case arise upon exceptions to conclusions of law stated by the court upon a special finding of facts.
The facts presented by the special findings are as follows: Mary W. Martin died intestate on April 14, 1905, leaving as her sole heirs, John Martin, her husband, and the appellees, her children. At the time of her death she was the owner in fee simple of the premises described in the complaint, the title to all of which she acquired by conveyances, through the intervention of a trustee, from her husband, and certain of the premises described in the complaint were then subject to a mortgage executed by the intestate and said John Martin, while the title to the property was still in his name, and to secure notes executed by him, which mortgage and notes were owned by appellee Union Trust Company, upon which there was due the sum of $3,753.50; that certain other parcels of said premises were subject to a mortgage in favor of appellee Phoenix Mutual Life Insurance Company, executed by said John Martin and the intestate, while John Martin still held the title to said premises, and which mortgage was given to secure notes executed by him to said Phoenix Mutual
On October 24, 1905, the surviving husband filed his voluntary petition in bankruptcy, and was by the District Court of the United States for the District of Indiana, duly adjudged a bankrupt, and the appellant was duly appointed as trustee of his estate, and as such brought this suit to have said real estate partitioned. His right to partition was not denied, and under the proceedings the premises, not being susceptible of division, were sold by a commissioner appointed by the court for that purpose, and the questions in controversy
On the other hand, the appellees, the children of the intestate, contend that as between appellant and themselves they are entitled to have the entire sum due upon the Earnshaw mortgage charged to the appellant’s interest in the fund, and that the other liens resting upon the premises shall be charged against the common fund, the appellant and each child’s interest in such fund bearing its proportionate part of such payment. No questions arise in the ease between appellant or the appellees, the children and heirs of the intestate, and the parties entitled to the liens upon the property, and no question is made but that appellant in this case, so far as the questions arising here are concerned, stands precisely upon the same footing as his assignor, the husband of the intestate, as he is entitled to all the rights, either in law or equity, that such husband would have been entitled to as against the children, and is subject to all the duties and obligations to which the husband would be subject.
The ease at bar in some respects presents facts more favorable to the appellees’ contention than the ease cited. The special findings here show that the debt secured by the Earnshaw mortgage was, in fact and in law, the husband’s debt, and the wife and her property but sureties therefor. He not only was a party to the mortgage, but also to the notes, and received the proceeds of the loan in his own hands, and used them for his own benefit. He cannot be heard in a court of equity to say that any part of his own debt shall be charged upon the interests of his cotenants in their common property, any more than he could do so if they had joined with him, after the death of the wife and mother, in a mortgage upon the common property received by inheritance from her, to secure his own individual debt. No error intervened in charging the entire amount of the Earnshaw mortgage upon the interest of the appellant in the funds for distribution.
Section 2990 Burns 1908, §2467 R. S. 1881, provides that the real and personal property of any person dying intestate shall descend to his or her children in equal proportions.
Section 3014 Burns 1908, §2483 R. S. 1881, provides 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.
Section 3016 Burns 1908, Acts 1891, p. 71, §1, provides that if a wife die, testate or intestate, leaving a widower, one-third of her real estate shall descend to him, subject, however, to its proportion of the debts of the wife contracted before marriage.
The case of Roach v. White, supra, involved a controversy between the surviving husband and a devisee of the wife, the will giving the entire estate in the premises in dispute to the devisee. The husband claimed that, notwithstanding the will, under the section of the statute here involved he took one-third of the premises by descent. No question of the liability of his interest to pay debts or liens was in any manner involved in the case. The expression of the court, in deciding the question that the right of the surviving husband to a one-third part of the real estate of which his wife died seized is absolute, has no special bearing on the question of the liability of such interest to pay the debts of the wife, or to bear its equal proportion in the discharge of liens upon the premises. The mind of the court in that case was not directed to these questions. All the court meant to be understood by the use of the word “absolute” was that upon the death of the wife the law east the absolute title to one-third of the lands upon the husband, regardless of any act of the wife that would otherwise have the effect to deprive him of such interest, precisely as the law cast the absolute title to real estate upon the children of a person dying intestate, seized of the same. So far as the nature of the title cast by the law of descent is concerned, the language of one section of the statute is precisely the same as the other.
The cases of Kemph v. Belknap, supra, and Weaver v. Gray, supra, following it, and the reasoning by which the court sustained the decision of those cases, do, however, lend support to the appellant’s contention, and were we entirely satisfied with the soundness of the reasons given by this court
In the two cases just cited the question did not arise as it is presented here. It was not there a question in reference to the payment of liens upon the property of which the intestate died seized, and for which her estate was not liable, as it is here, but it was a question between the surviving husband and the administrator of the deceased wife’s estate.
In Kemph v. Belknap, supra, the question involved was whether the husband’s interest in lands acquired by descent from his wife could be subject to the payment of the expenses of her last sickness, funeral expenses and taxes, which were debts against her estate, and it was there held that the husband’s interest could not be subjected by the administrator to the payment of these claims. The process of reasoning by which the court arrived at the conclusion that the husband’s interest in the lands inherited from his deceased wife could not be so subjected to the payment of debts against her estate seems to be that the provisions of the statute in favor of the surviving husband and wife in the property left by the decease of either spouse is intended by the law to make a more ample provision for the support and maintenance of the family, and is not to be governed by the same rule that applies to the descent of property to children and other heirs, and the legislature, by expressly providing, in §3016, supra, that the interest which the husband takes in the wife’s land “shall be subject to its proportion of the debts of the wife contracted before marriage,” forbids the idea that such interest should be subject to any other debts than those therein expressly enumerated, the court affirming the familiar maxim of the law, that the express mention of one thing in a contract, will or statute implies the exclusion of others; that, with this express exception, the rights conferred by the statute of descents upon the husband in the
construction of beneficial provisions of the law in favor of the widow out of the husband’s estate, apply to like provisions for the widower out of the wife’s estate. The reasons for the enactment of such provision by the legislature, and their liberal construction by courts in favor of the widow, have no application whatever to the widower. The marital duties and obligations resting on the husband are entirely different from those resting upon the
The judgment of the court below is affirmed.
Rehearing
Petition for rehearing overruled.