49 Ind. App. 1 | Ind. Ct. App. | 1911
This appeal is from a ruling on a demurrer to a cross-complaint filed in an action begun by appellees to partition the lands described in the cross-complaint.
Appellant was made defendant in the court below upon his own petition, and filed his cross-complaint against plaintiff and his codefendants.
The averments of the cross-complaint are, in substance, as follows: The cross-complainant is the duly appointed and acting guardian of Nancy Groover, deceased, with authority from the Hendricks Circuit Court fully and finally to settle the estate of said ward. Said ward died intestate, February 24, 1909, the owner of an undivided one-third of real estate in Hendricks county, Indiana, particularly described, leaving personal property insufficient to pay the indebtedness against said estate, and it is necessary to sell said real estate to pay said debts. Said ward and her husband,- James H. Groover, on May 9, 1899, signed and acknowledged a deed conveying said real estate, which deed is set out in full in said cross-complaint, and describes the same land described in the original complaint, and the same land as that in which cross-complainant is claiming the one-third interest, and contains the following provision:
‘ ‘ That the undivided one-half of said before-described lands is hereby conveyed to the Caldwell children, as before named, and the other undivided half thereof to the Gardner children, before named. The grantors James H. Groover and Nancy Groover hereby reserve the possession, use, rents and profits of said real estate so long as either of them shall live; that this deed is not to be delivered to said grantees until after the death of the survivor of the grantors.”
“May 9, 1899.
I have this day delivered this deed to Charles P. Martin my chosen executor, and hereby authorize him to keep possession thereof until the death of the survivor of the grantors, at which time I direct himto deliver it to the grantees grandchildren mentioned.
his
James H. X Groover.”
mark
The recording of said deed was unauthorized, and was without the knowledge or consent- of the grantors in said deed, and vested no title or interest in the grantees therein. Said James H. Groover died testate in Hendricks county, Indiana, on October —, 1900, and left surviving, his wife and five children. By the terms of his will he sought to confirm his acts in regard to the deed conveying said described real estate, and said Nancy Groover accepted under his will, but such acceptance of said described real estate was of no force and effect.
Wherefore, defendant asks that his ward, Nancy Groover, deceased, be declared the owner of an undivided one-third of the real estate described in the complaint; that said real
In the absence of authority to settle the estate of his deceased ward under §3070, supra, said guardianship was ended by the death of his ward, and his only duty then remaining was fully to account for and turn over to the proper person the estate of his said ward remaining in his hands. Stumph v. Pfeiffer (1877), 58 Ind. 472, 476; Masters v. Jones (1902), 158 Ind. 647.
We think it clear that, under the statute and authorities cited, no cause of action is stated in appellant as guardian. But if it were conceded that appellant as guardian had authority to have the court adjudicate the interest of his deceased ward in real estate, and subject it to the payment of the debts of such ward, such right or interest would of course depend wholly on the right or interest of such ward.
In this case, we think it clear, under the allegations of the cross-complaint, that the deceased ward had no interest in said real estate.
The statute controlling upon this subject is as follows: “A surviving wife is entitled, except as in section seventeen [§2483] 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: Provided, that if the husband shall have left a will, the wife may elect to take under the will instead of this or the foregoing provisions.” §3029 Burns 1908, §2491 R. S. 1881.
Whether under the wording of this statute the averment of the cross-complaint that the deceased wife signed and acknowledged the deed is the equivalent of an allegation that she joined in the conveyance, and rendered the complaint insufficient, we need not decide, because, when taken in connection with other allegations, in the absence of any allegation of fraud, it is sufficient to show a delivery of the
There was not a violation of the provision or condition of the deed by such delivery. The deed provided only that there should be no delivery to the grantees until the death of the survivor of the grantors, not that there should be no delivery to some third person for their benefit. The husband in delivering the deed to Martin expressly provided that he (Martin) should retain possession of the deed until the death of the survivor of the grantors, and then deliver it to the grantees. It is to be presumed that both grantors intended that title should pass by their conveyance. To hold that said clause in said deed means that the grantors should retain possession of such deed, and not deliver it to some third person for the benefit of the grantees, would be, in effect, to hold that such grantors intended their deed to be a nullity.
In the case of Somers v. Pumphrey (1865), 24 Ind. 231, in a case affecting the wife’s real estate, the Supreme Court
If, in the absence of fraud, a delivery by the husband is sufficient when affecting the wife’s real estate, it should certainly be sufficient to pass title to the husband’s real estate.
There are other allegations in this cross-complaint which, when construed most strongly agáinst the pleader, as the law requires, would materially weaken it, if not render it insufficient as against demurrer, but these we need not discuss.
Judgment ■ affirmed.