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62 Ind. App. 650

Tieben v. Hapner

Indiana Court of Appeals

Decided February 24, 1916

Indiana Court of Appeals · decided 1916-02-24

<p>1. Bastards.- — ■Acknowledgment.—Inheritance.—Legislative Power.— Statute. — Section 3000 Burns 1914, §2476 R. S. 1881, providing that where a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed legitimate, is a proper exercise of the unlimited power of the legislature to prescribe the canons of inheritance, and such statute is effective in declaring that an illegitimate child coming within its provisions shall have the inheritable capacity of a legitimate child, p. 653.</p> <p>2. Bastards. — Inheritance.—Statute.—Where plaintiff’s mother instituted paternity proceedings before a justice of the peace and obtained a judgment that the defendant therein was plaintiff’s father, and the mother subsequently married another who took plaintiff into his family, acknowledging her as his own child, she was thereby legitimatized and had the same inheritable capacity as the legitimate children of such marriage, since the judgment rendered by the justice of the peace cannot be held to contravene the canons of inheritance as expressed in §3001 Burns 1914, §2476 R. S. 1881, which provides that where a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed to be legitimate, p. 654.</p> <p>3. Partition. — Sale of Lands. — Distribution.—In an action for partition of lands descending to the parties as heirs of their deceased father, the plaintiff instituted suit against her two brothers, who had received advancements of $5,000 each from the father and who had also inherited the interest in the lands of a deceased sister of the parties, the trial court found, when ordering a sale of the lands, that the plaintiff was entitled to one-fourth of the value of tbe land, wbieb she was entitled to have enhanced by her proportionate share of the $5,000 advancements made to the brothers, and that the defendants were each entitled to three-eighths of the value of the land after deducting their advancements from the one-fourth interest inherited by each of them from their father, which finding was proper and not objectionable as augmenting the plaintiff’s share by the interest of the deceased sister in the advancements made by the father to the defendants, p. 655.</p> <p>4. Partition. — Attorneys’ Fees. — Payment of. — Where the defendants in an action for partition in good faith, though unsuccessfully, resist the claim of the plaintiff to the land involved in the litigation, they should not be required to pay any part of the plaintiff’s attorneys’ fees. p. 656.</p>

Cited by 2 later decisions — most recently February 1950

2 state decisions

Relies on Osborne v. Eslinger · St. Clair v. Marquell · Bell v. Shaffer

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1916-02-24

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¶1On Petition for Rehearing.

McNutt, J.

¶2A very able brief has been filed by appellants on their petition, for a rehearing of this cause, and the court has given very careful consideration to the only question raised thereby, viz., the construction that should be put upon §3001 Burns 1914, supra, and after such consideration, we are of opinion that this court is bound by the construction placed upon said section by the ease of Binns v. Dazey, supra, and that such construction is correct.

¶34. But upon a re-examination of the record in this cause, we find that one matter raised by the assignment of error, and presented by appellants’ brief, was not decided by the original opinion. It is contended by appellants that the trial court erred in finding and adjudging that, from the proceeds of the sale of the real estate, the costs of this action, including a reasonable fee for plaintiff’s attorneys in this action, be first paid. It appears that appellants, the defendants in the court below, vigorously and in good faith resisted appellee’s claim to any part of the real estate involved in the litigation. In such a case it has been decided by the Supreme Court, and rightly, we think, that the defendants should not be required to pay any part of plaintiffs’ attorneys’ fees.

¶4*657In the case of Bell v. Shaffer (1899), 154 Ind. 413, 424, 56 N. E. 217, 221, it is said: “No reason exists why a defendant in a partition suit, who appears by attorney, to contest the title of the plaintiff, should be compelled to contribute to the payment of the attorney’s fees of his adversary, and we can not believe that the statute was intended to subject him to such liability.” See, also, St. Clair v. Marquell (1903), 161 Ind. 56, 67, 67 N. E. 693; Osborne v. Eslinger (1900), 155 Ind. 351, 58 N. E. 439, 80 Am. St. 240. It follows that the portion of the judgment directing appellee’s attorneys to be paid a reasonable fee out of the fund derived from the sale, as part of the costs of the action, was erroneous.

¶5The cause is remanded, with instructions to modify the judgment by eliminating therefrom the following portion thereof: “And a reasonable fee for plaintiff’s attorneys in this action”. It is ordered that the costs of this appeal be paid by the parties to the appeal in the following proportions: Appellee one-third and appellants two-thirds.

¶6The petition for rehearing is overruled.

¶7Note. — Reported in. Ill N. E. 644, 113 N. E. 310.

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