8 Ind. 54 | Ind. | 1856
The case is as follows: In September, 1851, Jacob Snider died intestate, leaving Eliza Snider his widow, and eig’ht children, who are his heirs at law. Hiram Marshall was appointed administrator of Snider’s estate. In that capacity he received about 1,300 dollars, money on hand at his intestate’s death, which he distributed among the said widow and heirs as follows: To her one-third, and to them two-thirds. Of the amount thus distributed, she received 434 dollars. After this, and before the sale of any property belonging to said estate, and about a month after Snider’s death, his widow died. By him she had no issue; but she left children by a former marriage. John Mills, the appellee, administered on her estate. In November, 1853, Marshall, as administrator, &c., filed in the Orange Common Pleas an account wherein it appeared that he had in his hands moneys derived from the estate of Jacob Snider, to the amount of 2,388 dollars, for distribution. But the judge of that Court having been of counsel for a portion of the distributees, the cause, for that reason, was certified
This case is governed by the statutes of 1843, and they provide that, where the deceased shall have died intestate, the surplus of the estate remaining after the payment of debts, shall be distributed to the widow, children or next of kin to the deceased, as follows: “ One-third to the widow, and the residue in equal parts to the children, and to the issue of any deceased child, by right of representation.......... If there be no widow, but there be children of the deceased, or their descendants, the whole surplus shall be distributed in equal shares to the children who are living, and to the descendants of a deceased child by right of representation.” R. S. 1843, pp. 552, 553. The position assumed by the Circuit Court, viz., that this is a case where there is no widow, is not tenable when applied to the facts stated in the record. If the wife survive the.husband, she becomes his widow; and the husband having died intestate, the law is just as explicit in giving one-third of the decedent’s personal property, after payment of debts, to the widow, as in giving two-thirds to the children or their descendants. The statutes to which we have referred neither say nor intend that she must be alive "when the distribution • is made. To us it is plain that her right of property, under the provisions above quoted, became vested at the moment of the intestate’s death. But we have,
The judgment is reversed with costs. Cause remanded, &e.