62 Ind. App. 650 | Ind. Ct. App. | 1916
Lead Opinion
This was an action in the court below by appellee against appellants praying for the partition of certain real estate which, it is claimed, descended from George Tieben, Sr., to appellants and appellee as his lawful heirs. The complaint was in three paragraphs. To these paragraphs of complaint answers were duly filed. Demurrers were sustained by the court to the answer to the complaint. Appellants refused to plead further, and the cause was submitted upon certain partial answers upon the question of advancements, rents, and profits. The errors assigned are: (1) The sustaining of appellee’s demurrer to the first paragraph of appellants’ answer addressed to the second, third, and fourth paragraphs of complaint.' (2) The overruling of appellants’ motion for a new. trial.
It is alleged in each paragraph of the answer that in February, 1862, Annie A. Osterman, the mother of appellee, instituted paternity proceedings against one Gerhard Kamp before a justice of the peace of Allen County, Indiana, in which proceedings said justice adjudged said Gerhard Kamp to be the father of such child. It is very strenuously argued that this judgment of the justice of the peace fixed the status of appellee in such manner that she could not thereafter become a legitimate heir of George Tieben, Sr.
The essential facts alleged in the complaint are without dispute. The court found that appellee was entitled to the one-fourth part of the real estate; that appellants were each entitled to a three-eighths part, subject to an advancement of $5,000 each, chargeable against the one-fourth interest which they inherited from George Tieben, their father. The court finds that appellee was entitled to no part of the share of Ella Tieben, deceased, whose death occurred subsequent to that of her father, George Tieben, Sr.
It is next argued that the judgment of the court ordering the partition of the land would give to appellee, taking into account the advancements, a greater share than her one-fourth interest therein; in other words, it is argued that by the finding of the court the share given to appellee is augmented by the interest of the deceased Ella Tieben in the $5,000 advancements charged against appellants.
We find no error in the record which would warrant a reversal of this cause. Judgment affirmed.
Rehearing
On Petition for Rehearing.
A very able brief has been filed by appellants on their petition, for a rehearing of this cause, and the court has given very careful consideration to the only question raised thereby, viz., the construction that should be put upon §3001 Burns 1914, supra, and after such consideration, we are of opinion that this court is bound by the construction placed upon said section by the ease of Binns v. Dazey, supra, and that such construction is correct.
The cause is remanded, with instructions to modify the judgment by eliminating therefrom the following portion thereof: “And a reasonable fee for plaintiff’s attorneys in this action”. It is ordered that the costs of this appeal be paid by the parties to the appeal in the following proportions: Appellee one-third and appellants two-thirds.
The petition for rehearing is overruled.
Note. — Reported in. Ill N. E. 644, 113 N. E. 310.