(125 N.E.)

plaintiff Jemima Plank the undivided one-third probate in the Carroll circuit court on Febthereof in value."

That the court thereupon appointed the same commissioners to make the partition thus decreed, who filed their report on the following day, being November 11, 1909. That said report is identical with the first report made by said commissioners, except that it omits the clause, "subject to forced inheritance as provided by law," in connection with the assignment made by them to said Jemima Plank; the paragraph of the report in that regard being as follows:

"We have set off to Jemima Plank in severalty, in fee simple, as and for one-third in value thereof, the following described portion of said real estate, to wit [here follows description of land in question], the same to be in lieu of her interest in the real estate described in said

warrant."

That said last report of said commissioners was duly approved and confirmed, and the court adjudged thereon that the partition thereby made be firm and effectual, and that the said Jemima Plank hold and occupy the real estate so set off to her in severalty. That the court appointed John H. Gould, the attorney for Jemima Plank, a commissioner to execute a deed of conveyance to her for the real estate so set off to

ruary 17, 1916, and that appellant James R. Plank duly qualified as executor thereof, and is now acting as such. That said Jemima Plank never at any time, after said partition proceeding in 1909, owned any real estate other than that set off to her in said proceeding, and never owned personal property of more than $650 in value. That immediately after the death of said Jemima Plank, appellant James R. Plank took possession of said real estate, claiming to own the same as devisee under the terms of the will of said decedent. That he still holds possession thereof under said claim of title and as executor of said will. That the decrees in said partition proceeding above referred to were prepared by the attorneys for plaintiffs and defendants by agreement, and submitted to the court. That the land described in the complaint and cross-complaint in this action is not susceptible of partition among the owners thereof, without injury thereto. On the special finding of facts the court stated the following conclusions of law:

"(1) That by virtue of the finding and decree rendered by the Carroll circuit court in the case of Jemima Plank et al. v. Ella Irwin et al., at the October term, 1909, Jemima Plank took an estate in fee simple, as the childless second wife of William Plank, of the real estate described in the complaint herein, and set forth in the sixth finding above.

"(2) That said real estate did not pass by virtue of the will of Jemima Plank, but at the death of said Jemima Plank said real estate descended to James Reed Plank, Minta R. Hinkle, Lela Irwin, and Marie Irwin in fee simple and as tenants in common thereof; that the said James Reed Plank owns the undivided threeowner of the undivided one-fifth thereof, and fifths thereof; that Minta R. Hinkle is the Lela Irwin and Marie Irwin each own the undivided one-tenth thereof, and the plaintiffs herein are entitled to partition of the real estate and their interest set off to them in severalty.

"(3) That cross-complainant and defendant James Reed Plank has no interest in said property, except as above set out.

her as aforesaid. That said commissioner executed said deed as ordered, the same being in the usual form, without restriction or limitation. That the remainder of said real estate was found not to be susceptible of partition, and was ordered sold by commissioners appointed by the court, with directions that the net proceeds derived therefrom be paid to James R. Plank, Ella Irwin, and Frances I. Hinkle in proportion to their several interests in said real estate. That the commissioners sold the remainder of said real estate for $10,424.70, and the net proceeds derived therefrom was distributed among the parties to said action, other than Jemima Plank, as ordered by the court. That said Frances I. Hinkle has since died, leaving appellee Minta R. Hinkle as her only heir. That said Ella Irwin has since died, leaving appellees Lela Irwin and Marie Irwin as her only heirs. That immediately after the land in question was set off to said Jemima Plank in 1909 she took full possession of the same, and remained in exclusive possession thereof until her death in 1916, without having made any conveyance of the Appellants filed their separate motions for same. That in 1910 she executed a will, wit- a new trial, which were overruled. Appelnessed by her attorney, John H. Gould, and lant James R. Plank then filed a motion by another, by which she gave $1,000 to a niece, which he sought to have the court adjudge, and all the remainder of her property to ap- on the special finding of facts and conclusions pellant James R. Plank. That she subse- of law, that he is the sole and exclusive ownquently executed certain codicils to her said er, in fee simple of the real estate in queswill, by which, among other things, she made tion, which motion was likewise overruled. an additional specific bequest of $400. That The court thereupon rendered judgment for said will and codicil were duly admitted to the partition of said real estate, in conformi

executor of the last will and testament of Je"(4) That the defendant, James Reed Plank, mima Plank and the defendant Jennie Jordan and Jennie Landis have no interest in said real estate.

"(5) That said real estate cannot be divided without injury to the interests of the respective owners thereof, and should be sold by a commissioner to be appointed by the court for that purpose."

125 N.E.-31

Jy with conclusions of law stated on the spe- other things, that one William Plank departcial finding of facts. Appellants now prose-ed this life intestate the owner in fee simple cute this appeal, and have assigned errors which require a consideration of the questions hereinafter determined.

(125 N.E.)

issue in said partition proceeding, appears to rely with special confidence on the fact that said Jemima Plank, in her motion to have the first submission, report of commissioners, and interlocutory decree set aside, assigned as one of the four reasons given therefor that"The report of the commissioners to make partition does not fairly state the title of this plaintiff in and to the real estate described in the complaint."

We cannot agree that the motion in question, based in part on the reason stated, had the effect for which appellant contends. The motion under consideration was an incidental step in the progress of the cause, collateral to the main object of the action. The sole purpose sought to be accomplished thereby was to have the first submission, report of commissioners, and the interlocutory decree set aside, in order that the cause might be resubmitted on the issues formed by the complaint and answers thereto, or on such issues as might be joined on any amended pleadings that might be filed therein. The court sus

tained said motion, and its purpose was thereby accomplished. No new issues were made, but the cause was resubmitted, not for a determination of any question involved in the reasons on which such motion was based, but for a determination of the issues formed by the complaint and answers thereto. The second finding and decree were based solely on a determination of such issues, and do not purport to determine any other question. Appellant has speculated as to which one of the reasons assigned in support of said motion probably induced the court to sustain the same, and has reached the conclusion that it was the fourth reason as quoted above, but with this we are not concerned, for if we should also speculate and reach the same conclusion, it would not help appellant, as said Jemima Plank failed to avail herself of the opportunity thereby offered to ask and obtain leave to amend her complaint, so as to put title to the real estate in issue, and have the court determine the same in accordance with her claim in that regard, if the law and facts would warrant it. Under these circumstances it cannot be said that the title to the real estate was in issue on the resubmission.

[5] Appellant also lays stress upon the facts that the second decree was prepared by the opposing attorneys in said action by agreement, and submitted to the court, and that said second report, as well as the second decree, were identical with the first report and decree, except that the clause "subject to forced inheritance as provided by law," was omitted therefrom. These facts have no controlling influence, as the preparation of the second decree by the agreement of the parties for submission to the court is wholly consistent with the common practice, in which opposing attorneys, after the court has an

nounced its conclusion, as a matter of convenience, agree upon an entry, embodying the conclusion so announced, and submit the same to the court for its approval. A decree so prepared and entered is not the same as a judgment by agreement; and, if it were so, it would not aid appellant, as the decree in question does not purport to be an adjudication against any of the parties to said action, with respect to their contingent right of forced inheritance. The reference made to such

right in the first report and decree was, in fact, mere surplusage, and added nothing that the law did not imply, under the facts shown, in the absence of such a reference.

[6] Appellant in his brief asks what was meant by the proceedings in the partition suit under consideration, whereby the first report and decree were set aside, and the second report made and decree entered, with the single difference indicated above, if it were not intended to adjudicate the title of the said Jemima Plank to the real estate set off to her, and now in question in this action. We are not called upon to speculate as to the intention of the parties in that regard, but must confine ourselves to an interpretation of the pleadings as submitted, and the decree as entered, in determining the issues tried and matter adjudicated. Since they are not ambiguous, we may not read into them by way of judicial interpretation anything not fairly expressed by the language used. This forbids our adoption of appellant's contention in that regard. And in this connection we may add that the fact cited by appellant, that said Jemima Plank always believed, after said partition proceeding, that she owned the real estate in question, free from any contingent interest on the part of the children of her deceased husband by a prior marriage, and sought to devise the same to appellant by her last will, cannot have any controlling influence in determining what was actually adjudicated in said partition proceeding.

[7] Appellant finally contends that by the provisions of section 3024, Burns 1914, appellees are estopped from claiming any interest in the real estate in question. An examination of this section discloses that the estoppel for which appellant contends only arises where the childless second wife of a deceased husband, and the children of such husband by a former wife or wives, or their guardian, have attempted to dispose of the real estate left by such deceased husband by conveyance. The special finding of facts fails to show any such attempted conveyance of the real estate in question as would render the provisions of this section applicable. We cannot therefore adopt appellant's contention on the question of estoppel.

Based upon what we have said, we conclude that the court did not err in stating its conclusion of law. The decree is in harmony

with the conclusions of law, and hence the court did not err in overruling appellant's motion for judgment in his favor as alleged, or in rendering judgment in favor of appellees. Appellant has failed to point out any reason which would warrant a conclusion that the court erred in overruling his motion for a new trial. We find no error in the rec

ord.

Judgment affirmed.

KRAEGER v. KRAEGER. (Appellate Court of Indiana.

Action by Martha H. Kraeger against Anna Grover Kaufman Kraeger. Judgment for plaintiff, and defendant appeals. Affirmed.

L. L. Burris and Deahl & Deahl, both of Goshen, for appellant.

Drummond & Drummond, of South Bend, Church & Chester and Proctor & Cawley, all of Elkhart, for appellee.

REMY, J. Appellee secured a verdict and judgment for $5,000 against appellant for damages alleged to have been sustained by reason of the unlawful alienation by appel(No. 10077.)*lant of the affections of her husband, William H. Kraeger, resulting in his divorce from apDec. 16, 1919.) pellee and marriage to appellant. The only error assigned is the action of the court in 1. WITNESSES 192-DECLARATIONS OF HUSBAND NOT PRIVILEGED IN WIFE'S ACTION FOR Overruling the motion for a new trial; and the only reasons for a new trial which have been presented for consideration by this court relate to the admission and rejection of certain evidence.

ALIENATION OF AFFECTIONS.

In wife's action for alienation of husband's affections, declarations made by the husband to plaintiff in defendant's absence during the period plaintiff wife claimed his affections were being alienated are admissible at least to show the husband's mental attitude, for Burns' Ann. St. 1914, § 520, making a husband and wife incompetent witnesses as to communications made to each other, refers only to confidential

communications.

During the progress of the trial appellee, as a witness in her own behalf, was permitted, over appellant's objection, to detail to the jury certain declarations and statements made to her in the absence of appellant by William H. Kraeger, who at the time was her husband. These declarations and statements

2. HUSBAND AND WIFE 333(3)-HUSBAND'S were made to appellee during the period of

DECLARATIONS ADMISSIBLE IN ACTION FOR
ALIENATION OF AFFECTIONS.

While declarations of one not a party to an action made in the absence of the party against whom introduced are ordinarily inadmissible, yet, in a wife's action for alienation of affections, declarations made by the husband to wife and third parties during the period his affections were being alienated, but not in presence of defendant, are admissible to show his mental attitude.

In a wife's action for alienation of affections, evidence that the husband stated he was going to have plaintiff institute the action, when made long after the separation of plaintiff and her husband, after his marriage to defendant, and not in the presence of defendant, is inadmissible because hearsay.

time in which, as alleged in her complaint, her husband was enticed from her, and his affections alienated. Over appellant's objection, appellee was also permitted to prove similar declarations made during the same period by said Kraeger to a third party out of the presence and hearing of appellant. The objections to the said testimony of appellee are: (1) That the declarations and statements so made to her are communications between husband and wife, and therefore "privileged as to the defendant in this case"; (2) the evidence is hearsay; and (3) not part of the res gestæ.

The character of the evidence to which objections were made is such that it tends to show the state of the affections of appellee's husband toward her at the time; and appellee asserts that it was properly admitted for that purpose. It is not contended by appellee that the evidence is competent to prove the facts to which such declarations relate. It may be said at the outset that there is competent evidence, other than the said declarations and statements to which objections were made, which tends to prove all the material allegations of the complaint.

Clause 6 of section 275 of the Code of Civil Procedure (section 520, Burns 1914) provides that a husband and wife shall not be competent witnesses "as to communications made to each other," and appellant urges that the Appeal from Circuit Court, Elkhart Coun- said evidence admitted over her objection ty; James L. Harman, Judge.

consisted of "communications" between hus

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Superseded by opinion 135 N. E. 660.

(125 N.E.)

band and wife, which, under the broad lan- [ the rule against hearsay testimony, Wigmore guage of the statute, are incompetent. Wig- at section 1730 of his work on Evidence, says: more, in his valuable book on Evidence (section 2336), in discussing statutes of this character, says:

"The existence of an emotion-hatred, malice, affection, fear, and the like-is usually evidenced by conduct or by utterances indirectly indicating the feeling that inspires them. But a "In many jurisdictions this fundamental ele- declaration directly asserting the existence of ment of confidence is not expressly named in the emotion is admissible under the present exthe statutory enactment; it privileges any ception, like a statement of any other kind of communication.' Some courts, however, have mental condition. * * * A special applicaconstrued this phrase in the spirit of the cor- tion is also found in actions for alienation of rect principle, and have implied a limitation to affections * * where the state of affecconfidential communications. Others have lit-tions of the wife to the husband, or of the huserally applied the words of the statute, which band to the wife, becomes material." is thus allowed to create an intolerable anomaly in the law of privileged communications. No justification for such an extension of the privilege has ever been attempted, and it must be supposed that this broad statutory phrasing originated in inadvertence. It is proper enough to maintain that all marital communications should be presumed to be confidential until the contrary appears; but, if the contrary appears, there is no reason for recognizing the privilege."

[1] While the exact question presented in this case has not been before the courts of appeal in this state, our Supreme Court has in some well-considered cases refused to give the statute a narrow construction. See Stanley v. Stanley, 112 Ind. 145, 13 N. E. 261; Schmied v. Frank, 86 Ind. 250. The communications privileged by the statute embrace only confidential communications between husband and wife, which grow out of the marital relation, and which but for such relation would not have been communicated. The statute is grounded upon public policy. Its purpose is to protect the home, and thereby protect society. The declarations and statements of William H. Kraeger to his wife, as shown by the record in this case, tend to prove the state of his affections for her at the time. His affection for his wife, or his want of affection for her, could not be a matter of marital confidence. A husband is presumed to love his wife. His love was made public by his marriage. If he had lost his affection for his wife, the injury which it is the purpose of the statute to avoid had been done. We have carefully examined the evidence and record in this case, and hold that the declarations and statements of William H. Kraeger, who at the time such declarations and statements were made was the husband of appellee, are not, as to appellant, privileged communications within the meaning of clause 6 of section 275 of the Code, supra, but are at least admissible in evidence to show the state of mind of the declarant. See Sexton v. Sexton, 129 Iowa, 487, 105 N. W. 314, 2 L. R. A. (N. S.) 708..

[2] Ordinarily declarations of a person not a party to an action, and which are made in the absence of the other party, are inadmissible. This rule, however, is not without its exceptions. In discussing exceptions to

the

The one important issue in the trial of the cause was whether or not, through wrongful conduct of appellant, appellee had lost the affections of her husband with whom she had lived in happiness for more than 20 years. As bearing upon that issue, it was proper to show the husband's state of mind at the time of the alleged wrongful behavior of appellant, and for that purpose the declarations of the husband to his wife and to third persons, all of which tend to show his state of mind, are competent evidence. Clark v. Clark, 118 N. E. 123; Fuller v. Robinson, 230 Mo. 22, 130 S. W. 343, Ann. Cas. 1912A, 938; Hardwick v. Hardwick, 130 Iowa, 230, 106 N. W. 639; Hillers v. Taylor, 116 Md. 165, 81 Atl. 286; liams, 20 Colo. 51, 37 Pac. 614.

Williams v. Wil

A further objection to the said testimony is that it is not a part of the res gestæ, and therefore inadmissible. In actions of this kind there may be declarations of the spouse whose affections are alleged to have been alienated, which are a part of the res gestæ, and are admissible in evidence as such. Rudd v. Rounds, 64 Vt. 432, 25 Atl. 438; Hardwick v. Hardwick, supra. See, also, Daywitt v. Daywitt, 63 Ind. App. 444, 114 N. E. 694. When such evidence is admissible as a part of the res gestæ, courts for the most part have admitted it for all purposes. In the instant case the declarations complained of were made during the period of time when, as averred in the complaint, the affections of appellee's husband were being alienated, and were of such a character as to show the state of mind of appellee's husband, and were properly admitted in evidence, not as a part of the res gestæ, but under the exception to the hearsay rule, and as circumstantial evidence of relevant facts tending to show the disturbed state of mind of the declarant. See State v. Mortensen, 26 Utah, 312, 333, 73 Pac. 562, 633; 11 Ency. of Evid. 418; section 1726, Wigmore on Evid.

[3] The court did not err in admitting in evidence the declarations and statements of appellee's husband of which complaint is made. The evidence was competent for the purpose stated. An instruction limiting its application would have been proper; but appellant, having failed to tender such an