McClamrock v. Ferguson

Bicknell, C. C.

— This was a suit for partition by the appellant against the appellees. The appellant claimed to be the •owner of all the land, subject to a life-estate of Sophia Ferguson in one-third thereof, but the court below decreed partition, assigning to the plaintiff two-thirds of the land in fee, and to Sophia one-third in fee.

The only question arising upon the appeal is, what share in the land belonged to Mrs. Ferguson ? She is the second wife •of her co-defendaut Hugh Ferguson; she has no children by him, and he has children by a former wife. The land to be ■divided belonged to Hugh Ferguson; itwas sold on executions against him, and his title has become vested in' the appellant.

In section 1 of the act of March. 11th, 1875, R. S. 1881, sec. 2508, it is provided, that “In all cases of judicial sales of real property in which any married Avoman has an inchoate interest by virtue of her marriage, where the inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale, such interest shall become absolute and vest in the Avife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of the husband, whenever, by virtue ■of said sale, the legal title of the husband in and to such real property shall become absolute and vested in the purchaser thereof, his heirs .or assigns, subject to the provisions of this act, and not otherwise.” This statute governs the present case.

.In Jackman v. Nowling, 69 Ind. 188 , this court held that a wife, under this statute, takes precisely the same interest in the lands, upon the execution of the sheriff’s deed to the pur■chaser, that she would have taken therein without this statute, upon the death of her husband, leaving her surviving him, under the provisions of section 27 of the statute of descents. Said section 27 provides that “A. surviving wife is entitled, *210 except as in section 17 excepted, to one-third of all the real estate of which her husband may have been seized in fee simple,, at any time during the marriage, and in the conveyance of which; she may not have joined, in due form of law.” 1 R. S. 1876, p-413. In this case the land belonged to the husband in fee-simple,'and the wife had not joined in any conveyance of it-

The exception in section 17, supra, does not affect this case ; but the proviso in section 24, 1 R. S. 1876, p. 412, is “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.” This proviso does prescribe, qualify and limit the rights of a second or other subsequent wife in the lands of her deceased husband.

In Utterback v. Terhune, 75 Ind. 363 , this court held that under said proviso of section 24 the wife takes a fee. The-court said : “ That, under this proviso, the children take from the wife, not from the husband, what .she took from the husband, would seem to be as clear as language can make it. If, therefore, the children take from her, at her death, a fee, she must have taken from the husband, at his death, no less than a fee. The children could take no more from her, at her death, than descended to her from her husband at his death. But while she. takes from the husband a fee, she takes it by the statute, to be transmitted from her, at her death, to the children of her husband. The statute makes the children of the husband the forced heirs of his surviving widow, whose right of inheritance, like that of a forced heir under the civil law, can not be defeated.”

The statutes and decisions hereinbefore referred to are decisive against the appellant upon the question in controversy - There was no error in the conclusions of law upon the facts found, and the judgment ought to be affirmed.

Pee Cueiam. — It is therefore ordered, on the foregoing opinion, that the judgment of the court below be and it is hereby in all things affirmed, at the costs of the appellant.