McKinney v. Smith

Mitchell, J.

This was a suit for partition. The appellant claimed to be the owner, as tenant in common, with Eorena Smith, of a certain tract of land in Vigo county.

The facts, as set forth in the complaint, are as follows: William Smith died July 3d, 1866, leaving Christiana Smith, his childless widow by a second marriage, and Samuel Smith, •a son by a former wife. During his marriage with Christiana he conveyed to his son Samuel the tract of land in question, his wife not .joining in the conveyance. After his death his widow, in the year 1883, intermarried with Elijah McKinney, ■and during such subsequent marriage, her husband joining, she also conveyed her interest in the land previously conveyed by her first husband, to Samuel Smith. Subsequently, the grantee, Samuel Smith, died, leaving as his widow and sole heir the appellee, Lorena Smith.

Upon the facts stated the sole question is, whether the deed made by Christiana McKinney and her husband Elijah was \a valid conveyance of the interest which she took as surviving wife of William Smith ?

*405 Filed May 21, 1886.

As William Smith did not die seized of the lands in controversy, the estate which his surviving wife took therein did not accrue to her as heir, under section 2483, R. S. 1881. She-took an estate in fee simple, by virtue of her marital right,, under section 2491, and the estate which she took was not., subject to the proviso contained in section 2487. Slack v. Thacker, 84 Ind. 418; Hendrix v. McBeth, 87 Ind. 287 .

But irrespective of the manner in which the appellant derived her title, whether as ’heir under section 2483, or by-virtue of her marital rights as purchaser under section 2491,, or whether the estate which she took was subject to the above-mentioned proviso or not, she was not subject to the disability, or restraint upon alienation, imposed by section 2484. By the express terms of that section, “ in case there be no ■ child or children or their descendants by the marriage in virtue of which such real estate came to such widow,” she-may, her husband joining, alienate. Whatever, therefore, her-interest was, since there was no child or children, or their descendants, as the fruit of the marriage in virtue of which-she held such interest, she had the power to alienate it. Having the power, and having exercised it, by the exécution of a deed in due form, her entire interest, which, as we have-seen, was a fee simple in one-third, was thereby conveyed to-her grantee.

As it thus appeared that the appellant had no interest in the land which she sought to have partitioned, there was no error in the ruling of the court in sustaining a demurrer to,the petition for partition.

Judgment affirmed, with costs.