37 Ind. 303 | Ind. | 1871
This was an action to quiet the title of the plaintiff therein to certain real estate. The facts involved are that John F. Mathers, the father of the appellant, died intestate in the year 1863, the owner of the land in question, leaving the appellant and his widow, Elizabeth Mathers, as his only heirs. Elizabeth afterward intermarried with the appellee, Alexander C. Scott, by whom she had one child, Dora Scott. Then Elizabeth Scott died, leaving the said appellant and said Alexander C. Scott and Dora Scott. surviving her.
Upon this state of facts the court found that said appellant
The appellant moved for a new trial, on the grounds that the finding was contrary to law and not sustained by sufficient evidence. This motion was overruled, and the plaintiff excepted and filed his bill of exceptions.
A question is made by counsel for the appellee as to the form of the bill of exceptions, but we are not inclined to allow the objection, as it seems to us that it would more properly have been made in the court below in settling the bill of exceptions, and that it ought not now to be made for the first time.
The decision of the main question depends upon the construction to be given to certain sections of the statute of descents. By section 23, when John F. Mathers died, the title to the real estate descended one-half to the appellant and the other half to his widow, Elizabeth Mathers, in fee simple. The widow, however, took her one-half subject to section 18 of the act, which is as follows: “ 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.” If this section stood alone, there would be no question about the devolution of the title. But it is provided in section 22 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.” And section 15 provides, that “ every rule of descent or distribution prescribed by this act, shall be subject to the provisions made in behalf of the surviving husband or wife of the decedent.”
We apprehend that the construction placed upon these sections of the statute, by which the court was led to give the second husband a part of the estate derived from the first
After mature consideration, we are of the opinion that neither Alexander C. Scott, nor Dora Scott, is entitled to any part of the estate; but that it all belongs to the appellant.
The judgment is reversed, with costs, and the cause remanded.