10 Ind. 566 | Ind. | 1858
Suit for partition. The complaint is by Frances Mmiindale, who alleges that she is the widow of Thomas Martindale, deceased-; that said . Thomas, at the' time of his death, was the owner in fee of certain real estate, which she describes, and' which is situate in Miami county, Indiana; that said Thomas left surviving him Jonathan Martindale and- nine others, his- heirs at law. She claims one-third of the real estate in fee.
The defendants answered that they are the heirs at law of said Thomas, who died in 1856; that the complainant was his second wife, and that said Thomas left no children surviving him by the complainant; but that said defendants are all his children by a former wife. They claim, therefore, that the complainant is not entitled to one-third in fee, but only one-third for life, as her dower in said lands.
The complainant demurred to the answer. The demurrer was sustained; and the complainant was adjudged to be entitled to one-third of the lands in fee, and they were set off to her accordingly.
The correctness of the decision must be determined by the law of descents.
Section 18, p. 250 of the 1 R. S. 1852, enacts, that on the death of the husband, a surviving wife shall inherit one-third of his real estate in fee where its value is 10,000 dollars or less; one-fourth, where its value is over 10,000 and does not exceed 20,000 dollars; and one-fifth where its value exceeds 20,000 dollars.
Section 24 qualifies both the foregoing sections, by enacting that if a man marry a second or other subsequent wife, and has by her no children, but has children alive by a previous wife, the land which, at his death, descends to such wife, shall, at her death, descend to his children. This section, in the cases embraced by it, limits- the wife to a life estate in the husband’s lands; and it embraces the case now under consideration.
But section 27 reenacts section 17, and extends its operation to equitable estates; and it is claimed that it has the effect of repealing sections 23 and 24.
The reenactment of a former section of a statute in a later section, is not necessarily a repeal of the former section. The reenactment may amount to nothing, and thus have no effect by way of repealing any former section. Cheezem v. The State, 2 Ind. R. 149.—Alexander v. The State, 9 id. 337.
Again, these are all sections of one statute and must be so construed as to give them all effect as far as possible, and carry out the intention of the legislature. Spencer v. The State, 5 Ind. R. 41.
Previous experience had taught us that some care seems to have been taken by our. codifiers to get into the code as many conflicting sections as could well be inserted. This ease adds to the evidence. Thus, in the same statute we are considering, section 18 provides that if a second wife shall die, leaving children by a former husband, her real estate coming to her by such former husband, shall go to those children; while section 22 provides, generally, that one-third of the real estate of a deceased wife shall' go to her widower. But those sections must be construed together.
In the case at bar, to give the widow a fee instead of a life estate, would work great injustice to the children of her late husband; and it will be well worthy the consider
A careful study of our law of descents will impress all with the necessity of its revision.
Per Curiam. — The judgment is reversed with costs. Cause remanded with instructions to give the complainant a life estate, but not a fee.