79 Ind. App. 247 | Ind. Ct. App. | 1922
Complaint by appellees against appellant for partition, alleging that Pearl Hughes died the owner of certain real estate of the value of $1,500 and left as her sole and only heirs appellant, her husband, and appellees, her father and mother; that the total value of her estate including real and personal property exceeded $2,300; that appellant was the owner of the undivided three-fourths, and appellees of an undivided one-fourth of such real estate, and that it was indivisible. A demurrer for want of facts was overruled and a decree ordering the land sold and the proceeds distributed, three-fourths to appellant and one-fourth to appellees.
Appellant contends that under this statute he is entitled, first, to an allowance of $1,000, and then to three-fourths of the value of the estate in excess of $1,000. This contention cannot prevail. The statute in question is clear and explicit. The body of the section first provides that, if a wife die intestate leaving no child, but leaving a father and mother, three-fourths of her property, real and personal, shall descend to the widower and one-fourth to the father and mother. This is followed by a proviso which limits the prior part of the section to cases where the value of the property left by the wife does not exceed one thousand‘dollars.
The office of a proviso is not to enlarge or extend an act, or the section of which it is a part, but rather to put a limitation upon and to qualify the language which the lawmaker has employed. Murray v. Gault (1913), 179 Ind. 658, 101 N. E. 632; Simpson v. State (1912), 179 Ind. 196, 99 N. E. 980; Stiers v. Mundy (1910), 174 Ind. 651, 92 N. E. 374; State v. Barrett (1909), 172 Ind. 169, 87 N. E. 7.
Had it not been for the limitation placed upon the section by the proviso, parents in a case like the present would have inherited one-fourth of the estate irrespective of its value.
Judgment affirmed.
