149 Ind. 415 | Ind. | 1898
The appellee, Emeline Ellsesser, together with her husband, co-appellee herein, instituted this action against the appellants, Mary and Peter
The facts found by the court, upon which the judgment is based, are the following: John Doyle, Sr., in the year 1854, died, intestate, at St. Joseph county, Indiana, the owner in fee simple of two hundred and twenty-eight acres of land situated in said county, of which the premises described in the complaint and judgment formed a part. Doyle left, surviving him, as his widow, Emeline Doyle (now Emeline Ellsesser, the appellee), and three children, Mary Doyle (now Mary Mickels, appellant), Rosa Doyle, and John Doyle, Jr., all three being the issue of the marriage with appellee. Mrs. Doyle, the widow, in 1857, was again married to Charles Ellsesser, her present husband and co-appellee, and Mary Doyle, the appellant, in 1867, was married to Peter Mickels, her present husband and co-appellant. John Doyle, Jr., died in 1868, intestate, leaving his mother, the appellee, and his two sisters, the appellant and Rosa Doyle, as his only surviving heirs. In 1869, Rosa Doyle died, intestate, leaving her sister and mother, appellant and appellee, as her only surviving heirs. No administration was had upon the estateof John Doyle, Sr., nor upon those of his two deceased children, and the said real estate re
The sole question presented for our decision is: Do the facts warrant the judgment which the court rendered? It is not controverted by the parties but that upon the death of the ancestor, John Doyle, Sr., his lands descended, one-third to his said widow, and the remainder to their three children; that subsequently, by the death of the two children, the mother, Mrs. Ellsesser, and the sister, Mrs. Mickels, became seized equally by inheritance from these deceased children of the undivided interests which they had in the real estate, and therefore, after .the death of these children, Mrs. Ellsesser was invested with an additional one-fourth, making her entire undivided moiety equal to seven-twelfths of the whole tract owned and held by John Doyle, Sr., at his death; and that Mrs. Mickels was the owner of the remainder; and that the land was held by the parties by these undivided shares as tenants in common, at the time the division was made, in October, 1870. The contention of counsel for appellants is that by reason of the fact that Mrs. Ellsesser, after the death of her first husband, intermarried with her co-appellee, holding the real estate in controversy in virtue of her previous marriage, she was interdicted by the statutes of descents then in force from making any conveyance or disposition of her interest in the land which she acquired as the widow of Doyle, and that the court, under the facts, had no power to
Section eighteen of the statutes of descents, in force since 1852, and which remained unchanged until 1879, reads as follows: “Sec. 18. 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.” 1 Davis R. S. 1876, p. 411. This section was materially changed and amended in 1879, and, as now in force, it constitutes section 2641, Burns’ R. S. 1894 (2484, R. S. 1881). This change or amendment of the law does not affect the question involved in this appeal, and it must be controlled by the law as it existed at the time the partition of the land was made, in October, 1870. Wright v. Wright, 97 Ind. 444; Haskett v. Maxey, 134 Ind. 182. This section of the statute relating to descents and the apportionment of the estates of deceased persons has been frequently considered and construed by this court, and the holding under the original act has uniformly been that all deeds, mortgages, or agreements made during the second
It is true that the rigor of the rule originally prescribed by the statute, and on which the earlier decisions of this court are founded, has been changed and modified, as we heretofore said, in two material respects, by the amendment of 1879: First. The former widow, during the subsequent marriage, together with her husband, may alienate the land, provided the child or children of the previous marriage, are of full age, and join in the conveyance. Second. She and the husband may also dispose of it where there are no children or their descendants of the previous marriage in virtue of which she acquired such real estate. While, under the statute as it stood prior to the time it was modified, the appellee was absolutely forbidden during her subsequent marriage to make any direct or indirect alienation of the land which came to her by the previous marriage, nevertheless during such
It is insisted upon the part of counsel for the appellant, however, that the decision of this court in the appeal of Fugate v. Payne, 130 Ind. 281, is controlling upon the question here involved. The conveyances in that case were made after the law was modified by the amendment of 1879; and- while that cause, under the facts and the law as it then existed, was correctly decided, still that decision can have no bearing upon the case at bar. While appellants, under the statute as now modified, might voluntarily join appellees in a
Possibly there are equities in the case in favor of the appellee which the record does not disclose; but these in such a cause as this, the court is not permitted to consider, and the law must be accepted and applied as enacted with all its rigor." It follows that the judgment cannot be sustained, and it is therefore reversed, and the cause remanded to the lower court, with in structions to vacate its judgment, and grant appellants a new trial.
Howard, O. J., did not participate in the decision of this case.