Caywood v. Medsker

On Petition for a Rehearing.

Morris, C.

The appellee has filed an earnest petition for a rehearing. He insists that the court erred in holding that, by his purchase of the real estate in dispute at sheriff’s sale, he is entitled to hold but two-thirds of it.

Elizabeth Parker was the second wife of the judgment debtor, William O. Parker. She had no children by him, and had, as seems to have been admitted by all parties, attained an age which rendered it impossible that she should have children. The judgment debtor had children by a former wife. The judgment upon which the land was sold did not order it to be sold, nor was the debtor’s wife a party to it.

*526The appellee contends that by his purchase he became the-owner of the land in fee, subject only to the life-estate of Elizabeth in one-third of it, which, it is admitted, may be set off to her under the act of 1875.

The appellants contend, and so we decided, that upon the-death of William O. Parker, Elizabeth, the second, childless wife, would take, as against the creditors of her husband, one-third of said land in fee, which would, at her death, descend to his children by the former marriage; and that, under the-statute of 1875, she took, upon the sale to the appellee, the same -estate in the land that she would have taken had her husband then died. This last proposition is not questioned 'r but the appellee insists that the wife took only a life-estate,, not a fee, 'as against the husband’s creditors.

Aside from judicial construction, the 17th section of the-law of descents, 1 R. S. 1876, p. 411, would seem to settle the question adversely to the appellee. The language is: “ If a husband die testate, or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors.” This language is so clear and emphatic — not only giving one-third of the land to the widow in fee, but declaring it free from all demands of creditors— as to forbid construction. But this section is to be considered and read in connection with the proviso to the 24th section, p. 412. If we read them together they stand thus :

If a husband die testate, or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors: Provided, That if a man marry a second or other subsequent wife, and has, by her, no children, but has children alive, by a previous wife, the land, which, at his death, descends to such wife, shall, at her death,, descend to his children.” It is obvious that this proviso-does not conflict with the preceding clause. It gives additional emphasis to it. The children, at the widow’s death, take from her just what she took from her husband at his death. If she did not take a fee, the children could not; in*527deed, if she did not take a fee, they could take nothing. The cases to which the appellee referred, and which will be noticed presently, hold that the children do take a fee.

The case of Louden v. James, 31 Ind. 69, decided in 1869, and never questioned till now, holds, in accordance with the statute, that the second, childless wife takes a fee, free from the demands of creditors. It has been the law and the rule of property until the present. It ought not to be lightly disturbed or departed from.

The appellee says it was not attempted to reconcile this case with those of Martindale v. Martindale, 10 Ind. 566, Ogle v. Stoops, 11 Ind. 380, and Rockhill v. Nelson, 24 Ind. 422. This is true, but such an attempt was not made .for the reason, as stated by Judge Frazer, that there was nothing to reconcile. In all these cases the question arose between the widow and the children of the husband by a former wife.

The question was, what estate had she as against them? "Was she obliged to hold the fee so that at her death the children could take the fee that descended from the husband to her ? The court held that the children took the fee, and that the wife, as against them, took, practically, a life-estate. In none of these cases did the question decided in Louden v. James, supra, arise. Nor is there any conflict in these cases. As before remarked, by holding that the children took a fee, the court, in all these cases, impliedly held that the wife took and held the fee in trust for them. The case of Longlois v. Longlois, 48 Ind. 60, where the question was, as in Martin-dale v. Martindale, supra, between the widow and the children of the husband by a former wife, Judge Worden cites the case of Louden v. James, supra, as confirming and approving the case of Martindale v. Martindale, supra, and not as in conflict with it. The case of Louden v. James, supra, is the only one in which the precise question here presented, has been decided. It has been acquiesced in for many years and accepted as the law of the State.

It is insisted that the case of Hendrix v. Sampson, 70 Ind. *528350, is in conflict with the case of Louden v. James, supra, and should be regarded as overruling it. As we find the latter referred to in the former case with apparent approval, it could hardly be said that it was intended to overrule the case of Louden v. James, supra. We think the latter case states the law. See the cases of Christy v. Smith, 80 Ind. 573, and Armstrong v. Cavitt, 78 Ind. 476.

Pee Ctjeiam. — The petition is overruled.