Indiana Law Journal Volume 29 Issue 4 Article 6 Summer 1954 The Remarried Widow's Power of Alienation Under the Probate Code Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Estates and Trusts Commons Recommended Citation (1954) "The Remarried Widow's Power of Alienation Under the Probate Code," Indiana Law Journal: Vol. 29 : Iss. 4 , Article 6. Available at: https://www.repository.law.indiana.edu/ilj/vol29/iss4/6 This Note is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. NOTES THE REMARRIED WIDOW'S POWER OF ALIENATION UNDER THE PROBATE CODE Indiana's so-called Widow Remarrying Statute has, after 102 troubled years, been laid to rest by the new Probate Code,' but the situa- tion which it regulated holds out a promise, nevertheless, that its trouble- some spirit yet persists. Briefly, that situation arose when a widow with children who had received property by virtue of her first marriage chose to marry again.' The regulation exerted by the Statute on such property was twofold: (1) she was prohibited from alienating the property during such subsequent marriage, and (2), if she should die during the subsequent marriage, it was provided that the property should descend to her children of the first marriage.3 In 1879 the Statute was changed to permit aliena- tion of such land if the children were over 21 years of age and joined in the conveyance or if there were no children by the first marriage.4 The problem left by repeal of the Statute will be encountered when a widow, who remarried before the Code went into effect, tries now to alienate or devise property received from her first marriage. Did the old Act give the children an interest which, once created, could not be de- stroyed by repeal of the Statute? The extent of the children's interest is not readily apparent,' but since any interest they have must be in diminu- 1. IND. ANN. STAT., §6-2318 (Burns 1933). "Burns, Sec. 6-2318 is abrogated." IND. ANN. STAT., §6201 Commission Comment (Burns Repl. 1953). 2. I.e., property received by descent. "The restriction upon the power of a widow to alienate real estate held in virtue of a previous marriage, when there is a child or children or their descendants alive by such marriage, is contained in the statute of descents, and does not in our opinion, apply to real estate taken by her under the sections of the act regulating the settlement of decedents' estates ... " Odell v. Reynolds, 156 Ind. 253, 254, 59 N.E. 846, 847 (1900). "It is contended on behalf of appellants that, the land being devised to the widow, in lieu of her interest in her husband's estate, she took the one-half of the land so devised to her by virtue of her previous marriage with Allen. We cannot concur with this theory. The widow holds, by virtue of a marriage, the title to such land as descends to, and is vested in, her by operation of law." Allen v. Bland, 134 Ind. 78, 79, 33 N.E. 774, 774 (1892). 3. IND. ANN. STAT., §6-2318 (Burns 1933). 4. Ind. Acts 1879 (Spec. Sess.), c. 44. The General Assembly undertook to amend the Statute one year after its passage, Ind. Acts 1853, c. 38, but evidently the efficacy of the amended Act, if any, was limited. Teeter v. Clayton, 71 Ind. 237 (1871). "The counsel for appellee argue that section 18 was amended by the Act of March 4th, 1853. Acts 1853, p. 55. This is one of the amendments that were held to be void until the decision of this court in the case of The Greencastle Southern Turnpike Co. v. The State, 28 Ind. 382 [1867], and was repealed by the Act of March 9th, 1867, Acts 1867, p. 204." Id. at 239. 5. On various occasions Indiana courts have described the interest of the children of the former marriage as ". their interest in expectancy . ." Maynard v. Waidlich, 156 Ind. 562, 567, 60 N.E. 348, 350 (1900), or it has been said that ". the children had no existing interest . ." Pence v. Long, 38 Ind. App. 63, 76, 77 N.E. 961, 965 (1905), on the one hand and that they were ". the owners of the fee . ." on the other, Fugate v. Payne, 130 Ind. 281, 282, 29 N.E. 922, 923 (1891). INDIANA LAW JOURNAL tion of the mother's estate, a definition of it should help describe that of the children. It is clear that the widow is at least initially invested with a fee since the statute creates no interest in the children until after she remarries. Once remarried, however, she could not alien in any way: by warranty deed, mortgage, or will.6 Courts, on occasion, were severe in effecting the restraint even to the extent of defeating its purpose.' Indeed, a random sampling of the cases might give the impression that this restraint reduced the widow's interest to a mere life estate. For example, the Indiana Supreme Court has referred to a remarried widow's interest in such property as "her life estate therein,"' has permitted her to lease the property for her life,' and has alluded to the Statute of Gloucester of 1278 which regulated a widow's dower." Closer analysis, however, dispels the initial impression left by this sampling, for in the first case, although the court denied the alienability of "her life estate therein," it did not limit her interest to such, while in the second, alien- ability of a life estate was predicated upon the fact that she had more 6. A widow's warranty deed issued during her second coverture was void, Kemery v. Zeigler, 176 Ind. 660, 96 N.E. 950 (1911), while her quit claim deed (which, though the jury found no fraud, was attended by suspicious circumstances) issued after her divorce was good, Kemery v. Zeigler, 184 Ind. 144, 109 N.E. 774 (1915). The court, moreover, has treated a remarried widow's attempts to mortgage as a circumvention and void. Aetna Life Insurance Co. v. Buck, 108 Ind. 174, 9 N.E. 153 (1886) ; Vinnedge v. Shaffer, 35 Ind. 341 (1871) ; Polley v. Pogue, 38 Ind. App. 678, 78 N.E. 1051 (1906). And the proposition that the mortgagee of the fee might, upon foreclosure, take an estate for the widow's life has similarly been denied. Bowers v. Van Winkle, 41 Ind. 432 (1872). However, foreclosure proceedings might cut off all the persons properly made parties thereto, even though the mortgage was void. Maynard v. Waidlich, 156 Ind. 562, 60 N.E. 348 (1900), o'verriding McCullough v. Davis, 108 Ind. 299, 9 N.E. 276 (1886). See note 23 infra and accompanying text. Similarly, a remarried widow has not been allowed to alien by will. Davis v. Thomp- son, 179 Ind. 539, 101 N.E. 1012 (1911). "It has been well settled in this State that such widow cannot so alienate such land; and it makes no difference whether she undertook to do so by deed, mortgage, or will." Id. at 541, 101 N.E. at 1013. 7. In one case the remarried widow's conveyance was held to be void even though the entire consideration was appropriated to the benefit of the only child of the first marriage. The court said, "[t]his section of the law of descents has often been the sub- ject of consideration by this court, and it has been uniformly held, so far as we are ad- vised, that any deed, or mortgage executed in contravention of the provisions of said sec- tion was absolutely null and void, and conveyed no title, interest or estate, in or to the real estate held 'in virtue of any previous marriage,' to the grantee or mortgagee." Con- necticut Mutual Life Insurance Co. v. Athon, 78 Ind. 10, 16 (1881). 8. Vinnedge v. Shaffer, 35 Ind. 341, 343 (1871). 9. Forgy v. Davenport, 146 Ind. 399, 45 N.E. 592 (1896). 10. Blackleach v. Harvey, 14 Ind. 564 (1860). "The Statute of Gloucester pro- hibited the alienation, by the widow, of the estate assigned to her as dower; but it was held that an alienation for life simply, being no more than her interest, as it worked no wrong to her heirs, was not within the statute. See Book 2, Blacks. Comm., Shars. Ed., p. 137, and note 26." Id. at 566. NOTES than a life estate." A statute relating to the dower interest is obviously appropriate only in a genealogical sense. An early opinion stated that the Act merely directed the descent of the land and did not limit the widow's estate;" this position was subse- quently supported by the idea that a son on coming of age could not ratify a sale attempted by his mother before his majority because he had no interest during her life but only by descent at her death.'3 Feeling that the children had no interest during their mother's life, this court must have thought that she had a fee. That this was true is further indicated by the fact that should she outlive her second husband property from her first marriage would descend to all her heirs generally.' Furthermore, the statute which gives a widow one third of her husband's property provides that she shall take it in fee simple.'5 The court has said that the Widow Remarrying Statute does not reduce this interest.' If she has a fee, it must be admitted that the statutory restraint does restrict it somewhat, but as to creditors the courts have confined this limitation to the narrowest possible grounds.