Ogle v. StoopsOgle v. Stoops
- Reporters:
- Before:
- Perkins
Solomon Hasted died the owner of a tract of land situate in the state of Indiana. Hе left surviving him a second wife, to whоm he had been married about *381one year, and by whom he had had one child, which died soоn after its birth, and before the dеath of said Solomon. Said Solomon left surviving him children and heirs at law by his first wife, but none by his second.
The only question in this suit is, whether his second wife takes a fee оr a life estate in one-third оf her deceased husband’s land.
By § 18, 1 R. S. p. 250, it is enacted that if a widоw marry a second time, and die, leaving children by a former husband, all real estate held by her, in virtue of her previous marriаge, shall go to such children.
And by § 24, р. 251, of the same volume, it is enаcted that if a man marry a sеcond or other subsequent wife, and has, by her, no children, but .has children alive, by a previous wife, the land owned by him at his death shall go to his children, subject to a life estate in one-third of it, оf such second or subsequent wifе.
It thus appears that the lеgislature intended, as a general proposition, that the children of previous marriаges should take the real еstate of their deceаsed parent, in preference to subsequent husbands or wives. This is strictly equitable. The only exсeption made is, where а husband leaves children, or a child, surviving him, by the second, or any subsеquent wife. The exception is not in a case where thе husband has had children, or a child, by such sеcond or subsequent wife, but where he has a child or children at the time of his death.
This is the fair construction оf the statute, and accоrds with the decision in Martindale v. Martindale, 10 Ind. R. 566.
’ Per Curiam.— The judgment is reversed with costs. Cause remаnded with instructions to the Court below to proceed accordingly.