Tieben v. Hapner

Shea, J. 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. — 652 — In view of the conclusion we have reached, we need not consider in detail errors argued with respect to the ruling of the court upon the demurrers to the answer filed by appellants. The complaint alleges, in substance, that George Tieben, Sr., and one Annie A. Osterman were married January 21, 1863; that appellee herein was the illegitimate daughter of Annie A. Osterman, born on the -day of May, 1862, before her marriage to the said George Tieben, Sr.; that appellee, then an infant about nine months old, was taken into the family of said George Tieben, Sr., and took the name of Tieben, and was from that time until her marriage, which occurred November 3, 1895, known and recognized as Anna Tieben, and was so called by George Tieben, Sr., and her . mother;'that she was taught to believe that said George Tieben, Sr., was her father; that said Tieben treated her at all times as his own child, and as he did his other children, and she was acknowledged by said George Tieben, Sr., as his child,, so treated by him, and by him so held out to the public from the time of his marriage to the time of his death; that the mother of appellee died August 24, 1895, leaving as her sole and only children, appellee, appellants herein, and Ellen Tieben; that George Tieben, Sr., did not remarry after the death of his wife; that he left as his sole and only children born in wedlock appellants and Ellen Tieben, together with this appellee; that said George Tieben, Sr., died intestate October 21, 1904; that at the date of his death he was the owner in fee simple of the land described in the complaint, consisting of 62.29 acres. In her complaint appellee claims to be the owner of an undivided one-third interest in the value of said land, which was found to be worth $4,650; that it was claimed that advancements had been — 653 — made to appellants George Tieben and John G. Tieben in the sum of $5,000 each. 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. 1. Section 3001 Burns 1914, §2476 R. S. 1881, reads as follows: “If a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed to be legitimate.” This statute fixed appellee’s status if the evidence brought her within its provisions, regardless of the finding of the justice. This act substantially in its present form was first enacted January 2, 1817. (§9 St. 1824, C. 31.) It has been-carried into each revision of the statute since that time. The statute is plain and unequivocal, and does not admit of construction. It may be laid down as a proposition which is beyond dispute that the legislature acted within its legitimate scope and power in enacting such statute. The power to prescribe canons of inheritance which shall absolutely determine the course of descent of all lands within this state is in the legislature. There is no limit upon its authority in such matters. The statute is effective in declaring that an illegitimate child thus acknowledged shall have the inheritable capacity of a legitimate child. Harvey v. Ball (1869), 32 Ind. 98; Binns v. Dazey (1896), 147 Ind. 536, 44 N. E. 644; Haddon v. Crawford — 654 — (1911), 49 Ind. App. 551, 97 N. E. 811; Harness v. Harness (1911), 50 Ind. App. 364, 98 N. E. 357. 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. 2. If the legislature had intended that the child, should become legitimate only in case of marriage by the father and mother, and subsequent acknowledgment, the language of the act would have so provided. Many of the states which have a similar statute do so provide. In such statutes the language is that “if the father shall marry the mother of the illegitimate child,” etc. So that we hold that the finding of the justice of the peace in this case can not .contravene the legislative intent as unequivocally expressed. Upon this statement of the record no error was committed by the trial court in overruling the demurrers to the- answers or in ordering a partition of the real estate upon the basis as above stated, of which appellants can complain. 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. — 655 — The language of the judgment is, in substance, as follows: It is decreed by the court that appellee is the owner in fee simple of the undivided one-fourth part in value of the real estate described, which she is entitled to have enhanced by her proportionate share of $5,000 advanced to each of the appellants; that appellants are each the owner of the undivided three-eighths part in value of said lands after deducting from the one-fourth interests inherited by each of them from their father their said advancements. It is ordered that the land be sold at commissioner’s sale; that in making the disposition of the proceeds thereof the said advancements shall be taken into account and charged against said appellants as above stated. A commissioner was appointed to make the sale and distributed the proceeds thereof in accordance with the finding and judgment. 3. In order that there may be no misunderstanding as to this court’s understanding of the decree, we shall state that, in the distribution of the proceeds of the sale, if it shall eventuate that the real estate shall not sell for $10,000 or more, which, when augmented by the $10,000 advanced appellants, would be an amount sufficient to make the one-fourth share of this appellee equal to the advancements charged against appellants, then the amount to be distributed from the proceeds of said sale shall be divided into two equal parts, one of which shall go to this appellee. The other shall be the interest which would have gone to the dead sister, inherited in this case by appellants. As we see it, this is in effect carrying out the court’s intention in the order made. The judgment is not susceptible to the construction sought to be placed upon it by appellant’s learned counsel. The interest of appellee in the real estate is clearly stated, and a proper calculation can be made there — 656 — from in accord with the judgment. Query: Whether appellee is not entitled to inherit from her deceased half-sister. §2996 Burns 1914, §2472 R. S. 1881. The question, however, is not presented, and we therefore do not decide it. Miller v. Miller (1883), 91 N. Y. 315, 43 Am. Rep. 669. We find no error in the record which would warrant a reversal of this cause. Judgment affirmed. Moran, J., not participating.