Howe v. Hardenberger

Letton, J. Frank Howe died in 1913, intestate. He was unmarried, and his parents were both dead. He left surviving him the plaintiff, Charles Howe, who is his full brother, and the defendants, who are half sisters, and the children of a deceased half sister and of a deceased half brother. Frank Howe and Charles Howe inherited 160 acres of land from their father, Albert C. Howe. Mrs. Howe died in 1908. A guardian was appointed for Frank Howe in November, 1908, on account of his being a spendthrift. Afterwards Charles Howe brought partition proceedings to divide the land, which was found incapable of division, and was sold by order of court. Frank’s share of the proceeds of the sale, $5,113.25, was paid to his guardian. There ivas also paid to the guardian from money due the ward from the estate of Mrs. Howe, $284.70. This commingled fund was part invested, part used for the benefit of the ward, the costs and expenses were paid from it, and at the time of Frank’s death there was still on hand $4,165.50 of this money. This was paid to the administrator of the estate of Frank Howe. In the proceedings for the final settlement of the estate, plaintiff filed a cross-petition claiming all the residue of the estate, except $250 paid as damages for the death of the deceased, as being derived from the sale of the real estate, on the ground that, as the full brother of deceased, he inherits all the property received by Frank Howe from the estate of his father. ■ Defendants insist they are entitled to share in the distribution. The issue to decide is whether the brother of the full blood should inherit the fund, or whether the children of the half blood are also entitled to share in it. [382] The decision of this case depends upon the construction to be given section 1275, Rev. St. 1913, which is as follows: “The degrees of kindred shall be computed according to the rule of civil law; and kindred of the half blood shall share equally with those of the whole blood, in the same degree, unless the inheritance came to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.” An exhaustive note dealing with the whole subject of descent and distribution among kindred of the half blood may be found appended to Anderson v. Bell, 29 L. R. A. 541 (140. Ind. 575). So much labor and learning has been expended by the courts of other states on this subject that we believe it only necessary to call attention to the cases in which the subject is discussed. The general tendency of this country is by statute to continue real estate in the blood of the ancestor. Kelly’s Heirs v. McGuire, 15 Ark. 555. But it is also generally held that, when the real estate has been exchanged for other land or has been converted into money or other property, it loses- its ancestral character. Armstrong v. Miller, 6 Ohio, 119; Pence v. Pence’s Adm’r, 11 Ohio St. 290; Kihlken v. Kihlken, 59 Ohio St. 106; Armington v. Armington, 28 Ind. 74. It is also held that the rule which prevails in equity that a trust fund may be followed as long as it can be identified and' segregated does not apply. Patterson v. Lamson, 45 Ohio St. 77; Rountree v. Pursell, 11 Ind. App. 522; Stevenson v. Gray, 46 Ind. App. 412. Where money has been received by an heir from the sale in partition or otherwise of lands descending to him without restriction or limitation, it does not retain its character as real estate, but he may use, invest, or dissipate it as if it came from any other source. In re Simmons, 55 Ark. 485; Emerson v. Cutler, 14 Pick. (Mass.) 108, 118; 9 R. C. L. 36-38. Nearly $300 of the fund claimed was not derived from the father’s estate. The money coming from it was commingled. The specific property not being sep [383] arated, distinguished, or kept apart, its ancestral character is lost. Rountree v. Pursell, 11 Ind. App. 522; In re Simpson’s Estate, 144 N. Y. Supp. 1099. In this state of facts, we are convinced that the property has lost its ancestral character. This was the conclusion reached by the county court and by the district court, and we believe that it is in harmony with the great weight of authority. Affirmed. Sedgwick, J., not sitting.