25 Ind. 274 | Ind. | 1865
Job Borton died in 1865, intestate and insolvent, leaving no personal property. The entire estate consisted of two lots in the city of Bichmond, each
The right of a widow, under our statute, to one-third of the real estate of her deceased husband is absolute against creditors, unless, by joining with her husband in a mortgage, she waives it. Such waiver can only operate in favor of the mortgagee; and other creditors, cannot surely reap advantages against her, from the fact that she has thus joined in a mortgage to one. 16. & H., § 17, p. 294. To so hold, would not be to give her the share “ free from all demands of creditors,” as the statute requires.
The whole estate, real and personal, except the share thereof given to the widow by law, must, if necessary, be
The foregoing legal propositions, derived from our statutes, ai’e not controverted in argument, but it is insisted that each parcel of real estate must bear its own bui-dens, without reference to the other. This, though the rule at common law, cannot be so now, if thereby the provisions of a statute would be violated. If we are correct in assuming that neither the heirs nor general creditors can, as such, possess any claim which will lessen the widow’s share in her husband’s real .estate, and that this cannot be changed by the existence of a mortgage, in the execution of which sire has joined, and that the mortgagee only can derive advantage from the mortgage, it would clearly result that the action of the court below upon the demurrer was right.
The importance of the question may justify a little further discussion of it. Our statutes, in providing for a widow, are liberal and peculiar. Instead of dower, as formerly, she takes one-third in fee, free from demands of creditors, except in certain cases. If, in the case before us, the indebtedness of the deceased had been the same, but no mortgage had existed, she would have taken one-third in fee. If she had not joined in the mortgages she would also have taken one-third in fee, and if the proceeds of the remaining two-thirds' had been entirely absorbed by the mortgages the general creditors would have received nothing. But if we assent to the position insisted on by the appellant, then the fact that she joined in the mortgages to certain creditors, would compel her to contribute one-third of the amount necessary to discharge the. mortgages, though this were not necessary for the payment of the mortgage liens, and did not benefit the holdei's of them, two thirds of the lands being sufficient to pay their claims, but would merely create a surplus for the benefit of general creditors,
The purpose of the statute to protect the widow in the share of lands given her in lieu of dower, by requiring the application of the rest of the estate to the satisfaction of liens on real estate, is further manifested by the 29th and 81st sections of the statute of descents, whereby it is enacted that where, at the death of the husband, liens exist for .the purchase money Of lands, she shall, upon the payment thereof out of the husband’s estate, take one-third thereof. Indeed, the legislation of 1852 was intended to work a radical change in the law concerning the rights of married women and widows. It is based upon principles not previously sanctioned either by the common law or by statute. It not only gives her an estate in fee, instead of one for life, but, as we have seen, it carefully protects the •estate thus given from heirs and creditors, as the ancient dower was not protected.
The judgment is affirmed, with costs,