81 Ind. App. 436 | Ind. Ct. App. | 1921
Suit by appellants against appellee for partition of certain real estate. Appellee, in addition to an answer in denial, filed a cross-complaint to quiet title and for partition, alleging that he was the owner of the fee in the undivided one-third part of the real estate, and of a life estate in the remaining two-thirds. To this cross-complaint, appellees filed a denial.
By a special finding, the court found the facts to be, in substance, as follows: On December 18, 1914, one Lydia E. Kessler, who at the time was the wife of appellee, died seized in fee simple of the real estate here in controversy, leaving as her only heirs at law appellee and appellants, the latter being her children by a former marriage. Thereafter, on December 22, 1914, appellants, by a quitclaim deed, conveyed the undivided two-thirds of said real estate to appellee. The deed contained the following provision:
“The said Martin V. Kessler shall have and hold said real estate for and during the term of natural life; provided, however, that if the said Martin V. Kessler, who is now a widower, shall marry, then such marriage shall terminate this estate. * * * It is the intention of the grantors by this deed to confer upon the grantee a life estate in and to their two-thirds therein, in order that the said grantee may enjoy the use and benefit of said entire tract of real estate so long as he may live; but the said life estate so conferred upon the said grantee shall terminate in the event that he shall marry.”
That ever since the execution of the deed, appellee has been in possession of the real estate, the present value of the two-thirds part thereof for and during the life of appellee being $1,166.50; that the real estate
On these facts, the court stated its conclusions of law to be: (1) That appellee is the owner in fee simple, and in possession, of the undivided one-third part of the real estate, and is the owner of a life estate in the remaining two-thirds part thereof; (2) that appellants are the owners of the undivided two-thirds of the real estate in reversion, each being the owner of the undivided two-ninths part, subject to the life estate of appellee; (3) that the- parties to the suit are entitled to partition; and (4) that the whole of the real estate shall be sold.
Exceptions to the conclusions of law present the only questions.
That appellee is the owner in fee, and entitled to possession, of the undivided one-third of the real estate sought to be partitioned, and that appellants are the owners of the fee of the remaining two-thirds thereof, are facts not controverted. The question involved in this appeal is whether or not, under the above facts as found by the court, appellee is the owner of a life estate in the two-thirds of the real estate, the fee of which is in appellants. It is evident that the trial court, in reaching the legal conclusion that appellee is the owner of the life estate in controversy, did so upon the theory that the above quoted provision of the deed must be construed as a condition in restraint of marriage; that, being a condition restraining marriage, it is void, and must be wholly disregarded. Such is the position now taken by appellee.
Pomeroy in his excellent treatise on equity jurisprudence (2 Pomroy, Equity Jurisp. [4th ed.] §933) says: “It seems to be settled by an overwhelming weight of authority, that limitations and conditions, precedent or subsequent, tending to restrain the second marriage of women, are valid, and by the most recent decisions the same rule has been applied to the second marriages of men.”
The trend of judicial decisions, both in this country and in England, sustains Pomeroy’s statement. Bostick v. Blades (1882), 59 Md. 231, 43 Am. Rep. 548; Appleby v. Appleby (1907), 100 Minn. 408, 111 N. W. 305, 10 L. R. A. (N. S.) 590, 117 Am. St. 709, 10 Ann. Cas. 563; Allen v. Jackson (1875), L. R. 1 Ch. Div. 399; Newton v. Marsden (1862), 2 J. & H. 356. The reason given by the courts is, that the rule as to first marriages has no substantial force when applied to second marriages; that a contract in restraint of a second marriage is a reasonable one, the prevention of which is not a matter of public concern. But it is suggested that whatever may be the law elsewhere, the Supreme Court of this state, in the case of Crawford v. Thompson (1883), 91 Ind. 266, 46 Am. Rep. 598, has laid down a contrary doctrine. An examination of the court’s opinion in that case discloses that the controversy was as to the validity of a provision in a will by which the testator directed that a daughter who was a widow should be paid a certain sum annually “so long as she should live”, but that if she should remarry, she “should not be entitled to said legacy from that time on.” The court held that since the gift was upon a condition sub
In the case at bar, the record shows that, a few days after the death of their mother, appellants executed and delivered to appellee, who was their stepfather, the deed in controversy, by which deed, a life estate in their two-thirds interest in the home which had been the property of their mother was conveyed to appellee. The consideration named in the deed was but ten dollars, although an estate for the life of appellee, at the time of the trial, was found to be of the value of $1,155.50. The intention of the parties is not in doubt. Appellee’s life estate in the interest conveyed was to terminate if he remarried. We hold that the condition in the deed that the estate conveyed by appellants to appellee should terminate, if he should marry, is a valid condition.
Judgment reversed, with instructions to the trial court to restate its conclusions of law and render judgment thereon, all in accordance with this opinion.