23 Ind. 462 | Ind. | 1864
McMakin filed hia petition against Catherine Michaels for partition of certain real estate in Montgomery county, averring that he is the owner in fee of the undivided four-fifths thereof; that said Catherine is the owner in fee of the other undivided fifth.
The appellee, being a minor, answered by her guardian ad litem: 1. The general denial. 2. Cornelius Michaels, James Michaels, Thomas Michaels, Mary Porter, and Andrew
The appellant demurred to the second paragraph of the answer for these reasons: first, that it does not state facts sufficient to constitute a cause of defense; second, that there is a defect of parties defendants; The demurrer
There was no order of court making new parties to said action, nor was there a finding on the issue made by the general denial to the petition. Einal judgment for defendant against the plaintiff for costs.
The proceedings in the court below were very irregular, but the question argued by counsel on both sides is this, who, under the law of descent, is entitled to inherit the land in dispute upon the death of Catherine, the widow of Cornelius Michaels, deceased ? It, is contended by the appellant that the children of Catherine, including those of her former marriage, are entitled to inherit the land of which she died seized. On the other side, it is contended that at least the children of Catherine, that are not of the blood of Cornelius, can not inherit the land that came to her by descent from him. It is claimed that the purchase of the land by Catherine at the commissioner’s sale was but a means of setting off to her her interest in the lands of which Cornelius, her husband, died seized. The main question in this case has been settled by this coirrt in the case of Mary Jane Smith v. Margaret A. Smith at this term. It was held in that case, upon full consideration, that those only who were of the blood of the ancestor last seized could inherit. The children of Cornelius Michaels by his previous marriage not being of the blood of Catherine, his widow, can not inherit land of which she died seized in fee. It follows that the court below erred in overruling the demurrer to the second paragraph of the answer.
But it remains to inquire whether the persons under whom McMakin claims title, inherited from their mother equally with their half-sister, the appellee ?
A widow inherits in fee, subject only to such qualifications as are prescribed by the statute of descents.
Sections 18 and 24 contain such qualifications, but asid'e from these we know of no other provision which in any way modifies the rule of descent, that the real and per
It is contended that section 6 is a modification of this canon of descent, but we do not think so.
The persons under whom McMakin claimed title, were the children of the person last seized in fee, and with the appellee, they inherited from their mother,, equally with their half-sister by the same mother.
But, aside from this, we think that Catherine Michaels, the ancestor last seized, held the land in question by purchase, and not by descent.
With respect t<? her purchase at the commissioners’ sale, she stands in the same condition as a stranger. It is true she paid the purchase money in part out of her portion of the proceeds of the lands of which the husband died seized; but if a stranger had purchased, the money in the hands of the widow could not have been treated as land descended to her from her husband, in questions of inheritance.
The judgment is reversed; cause is remanded to said court, with instructions to sustain the demurrer to the second paragraph of the answer, and for further proceedings in accordance with this opinion. Costs against the appellee.