or conveyance of the real estate had been made contemporaneously with or before the application, such fact might throw some light on the proper construction of the beneficiary clause of the policy and the answer to question "3. D." of the application (Lehman v. Lehman, supra), but the fact that such gifts were made long after the receipt of the policy would not necessarily show C.'s intention, when the contract of insurance was made, as to the beneficiaries intended therein. [3] It is a general rule that in policies like that there involved, which contain no provision authorizing a change of beneficiary, proof of anything said or done by the insured after the interest of the beneficiary has vested is not permissible to defeat the rights of such beneficiary. Masons' Union Life Ass'n v. Brockman, 20 Ind. App. 206, 50 N. E. 493; John Hancock, etc., Co. v. Daly, 65 Ind. 6; note 11 L. R. A. (N. S.) 92 et seq.; note 49 L. R. A. (N. S.) 853 et seq. [10] We recognize that in the instant case the purpose of the offered evidence was to throw light on the question of who was really intended by the insured as his beneficiary, and that in this respect it might be distintinguished from those cases in which the rule supra is recognized. However, we can see no good reason why the rule should be different. It seems to us safe and wholesome to hold that, where it is necessary or proper to resort to extrinsic oral evidence to aid in arriving at who were meant and intended as beneficiaries by any answer in the application of the insured, the inquiry should be limited to evidence which can be said to throw light on the meaning intended and understood by the insured at the time his application and insurance was written. At least, evidence of intention at a date so remote from such time as to afford time and opportunity for a change of desire and purpose on the part of the insured would open the door in such cases to the violation of the general rule indicated supra. The third question, supra, was properly excluded for the reason indicated in our discussion of the evidence offered in answer to the first and second questions supra. Finding no reversible error in the record, the judgment below is affirmed. (67 Ind. App. 230) HOFFMAN v. HOFFMAN. (No. 9513.) (Appellate Court of Indiana, Division No. 1. 1. DIVORCE March 20, 1918.) 106-ACTIONS-AFFIDAVIT. An affidavit in an action for divorce reciting that affiant was the plaintiff, that he had been a resident of the state of Indiana for more than five years and for more than six months had resided in a named city at a specified address, and that he was by occupation an sembler, is not a substantial compliance with Burns' Ann. St. 1914, § 1066, declaring that plaintiff shall, with his petition, file an affidavit as stating the length of time he has been a resi- 106-ACTIONS AFFIDAVIT scribed by Burns' Ann. St. 1914, § 1066, being The affidavit as to plaintiff's residence, premade a prerequisite to the right of divorce, a decree based on an insufficient affidavit must be reversed. ty; P. W. Bartholomew, Special Judge. Appeal from Circuit Court, Fayette Coun Action for divorce by George D. Hoffman against Dessie D. Hoffman. From a judgment for plaintiff, defendant appeals. Reversed, with instruction to grant new trial. Kiplinger & Smith and Megee & Ross, all of Rushville, and McKee, Wiles & Elliott, of Connersville, for appellant. G. Edwin Johnston, of Connersville, for appellee. HOTTEL, J. This is an appeal by appellant from a judgment against her in which appellee was granted a divorce and the custody of their minor child. Appellant filed a motion for a new trial, which was overruled, and this ruling is assigned as error. The grounds of said motion relied on for reversal are those which respectively challenge the decision of the trial court as being contrary to law, and as not being sustained by sufficient evidence. [1] In support of her contention that the decision is contrary to law, it is urged that the trial court was without jurisdiction of the case "because proper affidavit was not filed with the complaint." Said affidavit, omitting caption, is as follows: "George D. Hoffman being duly sworn upon his oath says: That he is the plaintiff in the above-entitled cause of action; that he has been a resident of the state of Indiana for more than five years last past, and for more than six months last past he has been a resident of the city of Connersville, county of Fayette, state of Indiana, and has, during said time, resided at the following named places, to wit, No. 907 Eastern avenue, in said city of Connersville; that he is by occupation an assembler.'" The statute which makes the filing of an affidavit necessary in such cases is section 1066, Burns 1914. The part thereof affecting the question involved is as follows: "The plaintiff shall, with his petition, file with the clerk of the court an affidavit subscribed and sworn to by himself, in which he shall state the length of time he has been a resident in the state, and stating particularly the place, town, city, or township in which he has resided for the last two years past, and stating his occupation, which shall be sworn to before the clerk of the court in which said complaint is filed." It is claimed that the affidavit, supra, is insufficient, because of its failure to set out all the essentials of this statute. Among the omissions pointed out and urged by appellant, is the following: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It will be observed that the only attempt in said affidavit to state with particularity the place of appellee's residence is for the six months next preceding the filing of his affidavit. The affidavit shows nothing as to his residence for the preceding 18 months of the said two years, other than the general statement showing his residence in the state for more than five years. (2) the "It does not state particularly the place, In the case there under consideration town, city, or township in which appellee has there was no affidavit, but the complaini itresided for two years immediately preceding the self was sworn to, and the court, following filing of his complaint." the case of Stewart v. Stewart, 28 Ind. App. 378, 62 N. E. 1023, held that the statute was complied with if the complaint, in addition to the averments necessary to the statement of the cause of action, contained the additional averments required by the statute to be contained in said affidavit. The question whether the complaint contained such additional averments is then discussed, and the court expressly recognized It is well settled that said statute is man- the three essentials of the statute, viz.: (1) datory; that it must be substantially com- The statement of the length of time the plied with; and that the affidavit provided plaintiff has resided in the state; for therein must contain all the things requir-necessity for stating particularly the place, ed by such statute. Smith v. Smith, 113 N. town, city, or township in which he has re E. 296, 297; Wills v. Wills, 176 Ind. 631, 633, sided for the past two years; and (3) the 96 N. E. 763, and cases there cited; Miller v. statement of his occupation. The court then Miller, 55 Ind. App. 644, 104 N. E. 588. It holds that the complaint contains by way of is conceded by appellee that said statute is general averment the equivalent of the first mandatory, but it is insisted in effect that and third essentials, supra, but that it cona substantial compliance with its require- tains no general averment as to the town, ments is all that is contemplated, and that city, or township in which the plaintiff rewhen the purpose and intent of the statute sided during the two years immediately preis looked to, it will be seen that the affidavit ceding the filing of the complaint. The supra contains the substance of all that the court then at length and in detail set out statute requires. In support of this conten- certain specific facts shown by such comtion appellee cites and relies on: Maxwell v. plaint for the purpose of showing that such Maxwell, 53 Ind. 363; Blauser v. Blauser, 44 specific facts were the equivalent of the Ind. App. 117, 87 N. E. 152; Eastes v. Eastes, general averment required by the statute, 79 Ind. 363, 369; Wills v. Wills, supra; thereby, in effect, holding that such general Brown v. Brown, 138 Ind. 257, 37 N. E. 142; statement or its equivalent is one of the Miller v. Miller, supra. things made essential by said statute. This case, instead of supporting appellee's contention in the case at bar, impliedly, if not expressly, holds the contrary. True, in the instant case the appellee stated particularly his residence for six months immediately prior to the making of the affidavit, but this is not a compliance with either the letter or the spirit of a statute requiring that such residence be stated with particularity for the two years next preceding the filing of such affidavit. This is especially so when we look to the legislative intent in the enactment of such provision, and appellee concedes that such intent should be looked to. The cases cited recognize the legal propositions involved in appellee's contention, but they by no means support the ultimate conclusion which he seeks to have drawn therefrom; that is to say, the cases cited in effect hold that a substantial compliance with the statute, supra, will satisfy its requirements, and that in determining what constitutes such compliance therewith the purpose and end to be accomplished by the statute should have influence, but there is nothing in either of the cases cited, or in any other case that we have examined, that will justify a conclusion either that the court have ever "relaxed the requirement of the statute," or that the affidavit under consideration meets such requirements. In the case last cited this court had before it the question now being considered. It recognized the rules above indicated, viz. that substantial compliance with said statute is sufficient, and that in determining whether there had been such compliance it is proper to look to the intent of the act. In this con nection, it quotes with approval from the ing as above indicated, viz. to limit its operThe purpose and intent of the statute beation to bona fide residents of the state, and to prevent the procurement of divorces by nonresidents through fraud or imposition practiced on the courts, it places upon the plaintiff in such cases the duty of stating particularly the place of his residence as therein provided for the full period of two years, so that the state may be placed in the possession of the facts from which it may protect itself against the fraud or imposition indicated. The statute requires a residence in the county for six months and in the state for two years. These facts are jurisdictional, and must be alleged in the complaint and (67 Ind. App. 213) HARLIN v. AMERICAN TRUST CO. (No. 9402.) proven upon the trial. The affidavit required to be filed with the complaint as above indicated was intended to furnish the state the means of ascertaining whether such ju- (Appellate Court of Indiana, Division No. 2. risdictional facts, required to be alleged and March 20, 1918.) proven, were in fact true. The affidavit here 1. BANKRUPTCY 396(1)-STATE LAWS-ENinvolved complied with the statute to the extent that it particularly stated appellee's place of residence for the six months preceding the filing thereof, and hence furnished the state the means of ascertaining whether the appellee had resided in the county the required six months, but it wholly failed to state the facts required by the statute which would have furnished the state the means of ascertaining whether he had been a bona fide resident of the state for two years. The latter requirement is just as essential and just as much a part of the statute as is the first, and no good reason could be given for the omission of either that would not equally apply to the other, and to hold that neither may be ignored would render that provision of the statute requiring the plaintiff to state particularly his place of residence for the two years next preceding the institution of his suit for divorce a nullity. We therefore conclude that the affidavit supra was not sufficient in the respect indicated. [2] The filing of said affidavit is by said statute made a prerequisite or condition precedent to the right of divorce, and hence any decree of divorce made without it or with one that fails to contain the essentials of the statute is contrary to law. Fairbanks v. Warrum, 56 Ind. App. 337, 345, 351, 104 N. E. 983, 1141; Equitable, etc., Co. v. Stout, 135 Ind. 444, 457, 33 N. E. 623. Other objections are made to said affidavit, but our conclusion as to that just considered makes consideration of the others unnecessary. FORCEMENT. istering Bankruptcy Act July 1, 1898, c. 541, 30 Under Burns' Ann. St. 1914, § 3052, whereby a wife's inchoate interest in her husband's lands, given her by sections 3014 and 3029, becomes absolute on a judicial sale thereof, when her interest is not directed by the judgment to be sold or barred by such sale, her interest becomes absolute and entitles her to partition as soon as his title is transferred by an adjudication to the trustee of his estate in bankruptcy, and before the trustee has made a sale thereof. 3. BANKRUPTCY 151-TITLE AND POSSES SION OF TRUSTEE. Under Bankruptcy Act July 1, 1898, c. 541, 70, 30 Stat. 565 (U. S. Comp. St. 1916, § 9654), vesting a trustee in bankruptcy with the title of the 'bankrupt on his appointment and qualification, and section 21 (section 9605) his bond conclusive evidence of vesting of timaking a certified copy of the order approving tle, the trustee takes an absolute title to the real estate as if by purchase, carrying with it the right of possession. 4. BANKRUPTCY 279-TRUSTEE'S RIGHT TO PARTITION. Under Burns' Ann. St. 1914, § 1243, giving the right to partition to any person holding lands as joint tenant or tenant in common, whether in his own right or as trustee, a trustee in bankruptcy who takes an absolute title to the bankrupt's real estate has an absolute right to partition against the bankrupt's wife, who has acquired an absolute interest therein on the adjudication. 5. PARTITION 55(1) PLAINT SURPLUSAGE. PLEADING COM A plaintiff whose right to partition is absolute under the statute is entitled to sue without giving reasons why, and hence averments in the complaint of his reasons for desiring it are surplusage. 6. BANKRUPTCY 295 - PARTITION-JURISDICTION OF STATE COURTS. It is also contended that the appellee failed to meet the requirements of section 1066, supra, in that he failed to prove by two resident householders and freeholders of the state that he was a bona fide resident of the A case wherein a trustee in bankruptcy state and county at the time of the filing of seeks partition against the bankrupt's wife is his complaint, and for the respective periods a controversy arising out of settlement of the required by the statute; but, as the judg-ceeding in bankruptcy proper, and hence state bankrupt's estate, as distinguished from a proment must be reversed and a new trial or- courts have jurisdiction. dered for the reason already indicated, no 7. BANKRUPTCY good purpose can be served by a determination of any question involving the sufficiency of the evidence. In any event, the evidence in all probability will be supplemented in said respect at another trial. For the reasons indicated the judgment below is reversed, with instructions to the trial court to grant a new trial, and permit appellee to file an amended affidavit if he so desires, and for such other proceedings as may be consistent with this opinion. 293(1) PARTITION-JuRISDICTION OF FEDERAL COURT. to make partition of real estate between a trus- Where jurisdiction of a state court is intaining to the settlement of bankrupt's estate, voked in a proceeding involving a matter perit should, cautiously and in a spirit of judi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes cial comity and courtesy, inquire whether its act will result in a conflict of courts, and, if that question be answered in the negative, it should then entertain the action and proceed to determine the controversy, but it will not be justified in arbitrarily refusing to act merely because a pleading bears on its face suggestion of a possible conflict. 9. BANKRUPTCY 296-CONFLICT OF JURISDICTION-STATE AND FEDERAL COURTS. A conflict of courts does not arise out of the fact that, prior to filing a complaint in partition by a trustee in bankruptcy against a bankrupt's wife, the federal court ordered the trustee to sell the bankrupt's undivided interest; the trustee having decided for himself that partition would be advantageous to creditors, that he would not pursue the order to sell, and that he would invoke the jurisdiction of the state court as a matter of right under the state law. 10. BANKRUPTCY 279 CEEDINGS-VALIDITY. - · PARTITION PRO A partition proceeding by a trustce in bankruptcy against the bankrupt's wife in a state court, wherein he asks to have real estate sold, is not void, and she is fully protected in the benefits flowing to her therefrom. 11. BANKRUPTCY 302(1) COMPLAINT IN PARTITION-PERMISSION TO SUE. was adjudged a bankrupt he was the owner in fee simple of the following described real estate, situated in St. Joseph county, state of Indiana, to wit (description of property); that at the time the said Albert G. Harlin was adjudged a bankrupt the said Emma Harlin was his wife, and as such wife she was the owner, by virtue of the laws of said state, of an inchoate interest in the above-described real estate; that by reason of the adjudication in bankruptcy and of the appointment and qualification of the American Trust Company as trustee as aforesaid the said trust company became the owner of all the right, title and interest of said bankrupt in and to the said real estate; that by virtue of said proceedings in bankruptcy the title to said real estate, formerly held and owned by said bankrupt, vested in said trustee, to be held by it for the benefit of the creditors of said bankrupt in accordance with the Bankruptcy Law of the United States, and that by reason of said proceedings in bankruptcy the inchoate interest of the said Emma W. Harlin A complaint in partition by a trustee in in and to said real estate became absolute, bankruptcy need not aver permission to sue from the federal court, as he derives his right and thereupon she became entitled to have her to sue from Bankruptcy Act, § 23 (section portion set off to her in severalty; that said 9607). trustee in bankruptcy and the said Emma W. Appeal from Circuit Court, St. Joseph Harlin are the owners, as tenants in common, County; Joseph Combs, Judge. Partition by the American Trust Company, trustee in bankruptcy of the estate of Albert G. Harlin, against Wilbur A. Harlin, guardian of Emma W. Harlin, wife of said bankrupt. From a decree for plaintiff, defendant appeals. Affirmed. John A. Hibberd, Alfred E. Martin, and Stuart MacKibben, all of South Bend, for appellant. G. A. Farabaugh, of South Bend, for appellee. DAUSMAN, J. This action was instituted by appellee against appellant for partition. The trial court made a special finding of facts, stated conclusions of law thereon, decreed partition, and appointed a commissioner to execute the decree. The assignment of errors challenges the overruling of the demurrer to the complaint and each conclusion of law. The following is the substance of the material averments of the amended complaint: On the 5th day of December, 1913, Albert G. Harlin was duly adjudged a bankrupt by the federal District Court for the district of Indiana, and thereafter the American Trust Company was duly appointed trustee of said bankrupt's estate; that said trust company is now the duly qualified and acting trustee in bankruptcy of said estate; that one Emma W. Harlin is the wife of said bankrupt; that she has been duly adjudged a person of unsound mind and that said Albert G. Harlin is her duly qualified and acting guardian; that at the time the said Albert G. Harlin of the said real estate, and that the said trustee is the owner of the undivided threefourths, and the said Emma W. Harlin is the owner of the undivided one-fourth, of said real estate; that in February, 1914, said trustee was ordered by said District Court to sell said real estate subject to the interest of the said Emma W. Harlin; that thereupon it advertised for bids, and to the best of its ability endeavored to sell said real estate; that said trustee received several bids for said real estate equal to the market value thereof, but that each of said bids was for the whole of an individual piece or parcel of land and not for any undivided portion or interest therein; that thereupon said trustee endeavored to induce the prospective purchasers to buy the bankrupt's undivided interest in said real estate, but that said bidders refused to buy unless they could procure the entire and undivided title in fee simple; that said trustee reported these facts to said guardian and submitted said bids to him, but that he refused to take any steps to aid in the sale of said real estate by offering for sale the interest of his said ward therein; that more than a year has elapsed and the trustee has been unable to dispose of its interest in said real estate solely by reason of the fact that no purchaser can be found who is willing to buy an undivided interest in said real estate; that partition of said real estate is necessary in order that the rights of the creditors of said bankrupt may be protected and the estate of said bankrupt closed, the assets thereof distributed, and the said bankrupt discharged; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes that the said real estate is not susceptible of | Schicketanz, 73 Ind. 143; McCracken V. partition by metes and bounds; that the Kuhn, 73 Ind. 151; Haggerty v. Byrne, 75 premises will have to be sold and the pro- Ind. 502; Lawson v. De Bolt, 78 Ind. 565; ceeds divided according to the interests of the Leary v. Shaffer, 79 Ind. 570; Straughan v. parties. White, 88 Ind. 246; Mattill v. Baas, 89 Ind. 222; Ragsdale v. Mitchell, 97 Ind. 460; Mayer v. Haggerty, 138 Ind. 634, 38 N. E. 42. These cases rest on the ground that: "The_adjudication is the foundation of the The title relates to and rests upon the title. chaser through the court. The assignee takes as adjudication. a purThe transfer of the title follows the judgment of the court, and the assignee's title is derived through, and rests upon, the judgment and proceedings of the court and nothing else." Straughan v. White, supra. We see no reason why these decisions should not apply with full force and effect to the case at bar. We have discovered nothing in the Bankruptcy Act now in force which makes them inapplicable, and therefore they are controlling. Wherefore plaintiff prays that said parties be adjudged the owners of said real estate; that plaintiff have partition thereof; and that a commissioner be appointed, etc. [1] 1. The Bankruptcy Act recognizes, and the federal courts in the administration of it enforce, the laws of the states affecting dower, exemptions, the validity of mortgages, priorities of payment, and the like. This plan is not objectionable because it leads Stellwainevitably to diversity of results. gen v. Clum, 245 U. S. 605, 38 Sup. Ct. 215, 62 L. Ed. -; Hanover Nat. Bank v. Moyses, 186 U. S. 181, 22 Sup. Ct. 857, 46 L. Ed. 1113. [2] Section 3029, Burns' Ann. St. 1914, provides: "A surviving wife is entitled, except as in section seventeen [2483] excepted, to one-third of all the real estate of which her husband may have been seized in fee simple at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law, and also of all lands in which her husband had an equitable interest at the time of his death." Section 3014, Burns (designated in the foregoing section as "section seventeen") provides: "That where the real estate exceeds in value ten thousand dollars, the widow shall have onefourth only, and where the real estate exceeds twenty thousand dollars, one-fifth only, as against creditors." But counsel for appellant contend that the rule above stated is unsound, and that it should be held that the wife's inchoate interest cannot become absolute until the trustee in bankruptcy has made a sale. Why should the guardian of the wife of the bankrupt make this contention? In the very nature of things, a rule of law which operates to convert a wife's inchoate interest (a mere expectancy) into an absolute estate at the earliest possible moment must be beneficial to her. Suppose the rule to be as counsel contend, and that there should be considerable delay in making a sale, and that before the completion of the sale the wife should die, leaving her husband surviving, then her death would extinquish her inchoate interest, she would have derived no benefit from it in her lifetime, her heirs would inherit no interest in the real estate, and the bankrupt's cred [3] 2. Having determined that the wife of a bankrupt has the right of partition as against the trustee in bankruptcy, by what process of reasoning is it possible to reach the conclusion that said trustee does not have that right as against the wife? Section 70, B. A., provides: successor or successors, ** During the life of the husband the wife's interest in his lands, by virtue of said statutes, is inchoate a mere expectancy or contingency. It does not enable her to assert title, and it gives her no right of possession or control. If she should die before her hus-itors would take it all. band this inchoate interest is thereby extinguished. Paulus v. Latta, 93 Ind. 34; Thompson v. McCorkle, 136 Ind. 484, 499, 34 N. E. 813, 36 N. E. 211, 43 Am. St. Rep. 334; Nevertheless, by section 3037, Burns, this inchoate interest is protected and preserved for her as against judicial decree in proceedings to which she is not a party. Her said interest becomes consummate, matured, perfected, or absolute (1) upon the death of the husband (Pattison v. Wert, 153 Ind. 453, 55 N. E. 227; Fry v. Hare, 166 Ind. 415, 77 N. E. 803; Ohio, etc., v. Bevis, 18 Ind. App. 17, 46 N. E. 928); and (2) on judicial sale, where the inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale (section 3052, Burns 1914). The Supreme Court of Indiana has held that a conveyance by a judge or register in bankruptcy of the real estate of a bankrupt to his assignee is a judicial sale within the meaning of this statute, and that thereupon the inchoate interest of the bankrupt's wife in said real estate becomes absolute and entitles her to partition. Roberts v. Shroyer, 68 Ind. 64; Ketchum v. "The trustee of the estate of a bankrupt, upon his appointment and qualification, and his shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt. * * * Section 21, B. A., provides: "A certified copy of the order approving the bond of a trustee shall constitute conclusive evidence of the vesting in him of the title to the property of the bankrupt, and if recorded shall impart the same notice that a deed from the bankrupt to the trustee if recorded would have imparted had not bankruptcy proceedings intervened." The trustee in bankruptcy takes title as if by purchase. 5 Cyc. 341. He takes an absolute title which, of course, carries with it the right of possession. Boyd v. Olvey, 82 Ind. 305; Keck v. Noble, 86 Ind. 3; Acme Har |