Waterman v. Waterman

10 Ohio C.C. (n.s.) 605

• Court: Ohio Circuit Courts
• Decided: July 1, 1908
• Status: Published

Opinion

By the Court.

A family by the name of Anderson, having inherited certain real estate in Franklin county, in 1855, by a mutual agreement had an amicable partition made, in which the various heirs and their consorts joined in quit-claim .deeds to each other. One of these Andersons, to-wit, Rebecca Ann, had married a man by the name of Waterman, but when the quit-claim deed by the others was made, they inserted in it, as grantees, not only Rebecca Waterman, who was the sole owner, but also her husband’s name. The same kind of a deed was made to the other female heirs, that is: their husband’s names were inserted with .them, as grantees in the deed. Waterman and his wife lived on this place and used -and occupied the same until a year or two before the commencement of this action, when Mrs. Waterman died. Her husband claimed under .the deed to be entitled to one-half of the property and also his dower in his wife’s one-half. The children of Mrs. Waterman claimed that she was the equitable owner of the entire tract. A decree was granted as follows:

This day this cause came on for hearing, upon the petition of the plaintiff filed herein January 22, 1894; the answer and cross-petition of Chas. F. Waterman, and others, filed herein March 14, 1894; the answer of Edward Waterman, Clarence AYaterman and Mabel Waterman, infants, by their guardian ad lilem, filed March 18, 1895; the answer of Herbert Waterman, Florence Waterman, Walter AYaterman and Harold Waterman, infants, by their guardian' ad litem, filed March 23, 1895; the answer and cross-petition of Ida M. Waterman, filed March 23, 1895, and the second .amended reply of the plaintiff, filed March.30, 1895, and was heard upon said pleadings, the' exhibits and the -testimony, and was argued by counsel and submitted to the court, and upon consideration thereof and -being fully advised in the premises,' the court doth find from -the evidence the following facts and the law governing the same, as follows, to-w-it:

First. Rebecca Ann Waterman took title to the forty-Jive acres in dispute by inheritance. The deeds and partition proceeding being the means adopted to sever the tenancy in common and set apart separate tracts to each.

Second. That in the execution and exchange of the deeds and the election in partition, -there was no intention -on the part of the plaintiff and his deceased wife to make a gift or advancement to the .plaintiff.

Third. The insertion of the plaintiff’s name in said deed from the Anders-ons and in the election confirmed by the court, was a mistake of the scrivener drawing the deed and furnishing the entry of confirmation. The occupation -of said premises by the plaintiff during the lifetime of Rebecca Ann Waterman, >his wife, was not adverse.

Fifth. The improvement -of the estate by the plaintiff was made with knowledge on his part of the facts supporting the title of his wife, Rebecca Ann Water-man. Er-oin these facts so found, and arising from the attending circumstances, it follows, as a matter of law, and the court find that Rebecca Ann Waterman was seized in fee not only of the legal title of undivided half of the forty-five -aer-e 'tract, but also of the beneficial interest in the other half, and -that A. Frederick Waterman only held the title to the undivided -one-half thereof in trust for said Rebecca, and so the title remained until the death of said Rebecca, when it descended to the defendants- as her heirs at law.

T-o each and all -of which findings of fact and conclusions of law the plaintiff excepts. It is n-ow, therefore, ordered and adjudged that the petition be and the same is hereby denied. To which judgment of the -court the plaintiff -excepts. And it is now further considered and adjudged that the plaintiff, A. Frederick Waterman, make, execute' and deliver to the defendants, Mary E. Waterman, Emma L. Waterman and Alfred Gr. Waterman, children of Rebecca Ann Waterman, deceased, and to Edward Waterman, Clarence Waterman, Mabel Waterman, Herbert Waterman, Florence Waterman, Walter Waterman, Harold Waterman, children and heirs at law -of Charles F. Waterman, deceased, wh-o was- a son of the said Rebecca Ann Waterman, a good and sufficient deed or deeds of quit-claim, conveying to said defendants a fee simple title to the undivided one-half of the said forty-five acres of land described in the petition subject to his rights of dower therein, and that in default thereof for a period thirty days from the date of this decree, that it operate and stand-as such conveyance. Said forty-five acre tract of land is described as follows, to-w-it:

Situated in the -county of Franklin, state of Ohio, and in Franklin township, being forty-five -acres of land off from the east side of the tract estimated to contain sixty-six acres adjoining on -the east the farm kn-own as -the J-ohn Anderson Homestead farm, said sixty-six acre tract being the same conveyed by John Anderson to his sons, Robert, J-oshu-a and J. Redding Anderson, by deed dated May 30, 1836, and being the same forty-five acres -of land quit-claimed and released to Rebecca Ann Waterman, and A. Frederick Waterman, by deed dated December 24, 1855, by J. Redding Anderson and .others, and appearing of record in deed book 84, page 92, Franklin county deed record.

To all of which orders, judgments and decree of the court the plaintiff excepts. The said deed or deeds of quit-claim to be executed by the said A. Frederick Waterman shall convey the undivided three-fourths of the undivided one-half of the said forty-five acre tract subject to the dower estate therein to the said Mary E. Waterman and Alfred G. Waterman jointly, so that each of said seven children shall take an undivided one-seventh of said undivided one-fourth so conveyed subject to the right of dower of the said Ida M. Waterman, as the widow of Charles F. Waterman, deceased, in the said undivided one-fourth so conveyed.