60 Ind. App. 388 | Ind. Ct. App. | 1916
Appellee, Henry H. Hawkins, as administrator of the estate of Lafayette Spade, deceased, filed his petition in the Pike Circuit Court, asking an order for the sale of a 27-acre tract of land owned by decedent, to make assets for the payment of the debts of the estate. Appellant, the widow, and also the children of decedent- were named as defendants. In addition to the averments necessary to the procuring of such an order, there were other allegations to the effect that appellant and decedent intermarried March 4, 1900; that she deserted him within three months, and that thereafter continuously she lived and at the time of the death of decedent she was living, in adultery with James King and others whose names were unknown to appellee. There is a prayer that the . title to the lands be quieted against all claims of appellant and that they be sold for purposes aforesaid.
At the request of the parties, the court found the facts specially, and stated conclusions of law thereon. The finding so far as material here is to the following effect: Decedent died intestate in Pike County, Indiana, October 9, 1912, leaving surviving him as his only heirs at law the appellant, his widow, and certain children of a former marriage, and also one child, the fruits of his marriage with appellant. At the time of his decease, he was the owner of the lands described in the petition. Appellant and decedent were married March 4, 1900, and lived together as husband and wife until May 27, 1900, when appellant separated herself from de
The court stated a conclusion of law from the facts found that appellant, by reason of her adulterous practice of living at the time of the death of decedent was not entitled to share in his estate. Judgment was rendered and decree entered on the conclusions of law that the entire tract of land be sold for the purpose of making assets to pay the debts of the estate, free from all claims of appellant as widow. Error is assigned on the foregoing conclusion of law, and also on the overruling of appellant’s motion for a new trial. The only question presented under the latter assignment is respecting the sufficiency of the evidence to sustain the decision.
For errors indicated, the case must be reversed. Under the circumstances, however, it is probable that justice may be more clearly attained by a new trial. Judgment reversed, with instructions to sustain appellant’s motion for a new trial.
Note. — Reported In 110 N. E. 1010. As to adultery in the absence of divorce as a bar to dower, see 5 Ann. Cas. 230. See, also, under (1, 4) 14 Cyc 84; (2) 14 Cyc 84; 20 Cyc 852; (3) 38 Cyc 1980, 1985; (7) 16 Cyc 1053, 1082.