137 Ind. 151 | Ind. | 1894
Henry Rogers died intestate, at the county of Switzerland, in the year 1877. The appellant was his second wife, by whom he had no children. The appellees were children and grandchildren by his first wife. He died seized of certain lands in Jefferson county, which lands, upon proper petition, notices, bonds, orders, reports and deed, were sold to the appellant, in 1879, to make assets for the payment of debts of the estate.
It is admitted that under the statutes and decisions, as they stood prior to March 11., 1889, and at the time of the death of said Henry Rogers and said sale to the appellant, she obtained an absolute fee in but the two-thirds of said lands by such sale, and that she, as widow, took one-third in fee subject to a right of inheritance in said children, as her forced or statutory heirs. These admitted rights of the parties at that time, it is argued, have been so affected by the act of March 11, 1889 (Elliott’s Supp., sections 423, 424, et seq.; R. S. 1894, sections 2644, 2645, et seq.), that said children can not become her forced heirs, and, therefore, have neither present nor prospective interest in the one--third so taken by her as widow.
This conclusion of the appellant’s learned counsel rests upon the assumption that the act of 1889 is retrospective, and disturbs the rights so admitted to have existed prior to its passage.
It is a familiar rule of statutory construction, that legislation must be given prospective application, unless a different intention is clearly expressed. Hopkins v. Jones, 22 Ind. 310; Pritchard v. Spencer, 2 Ind. 486; Aurora, etc., Turnpike Co. v. Holthouse, 7 Ind. 59; Flinn v. Parsons, Admr., 60 Ind. 573; Stilz v. City of Indianapolis, 81 Ind. 582; Wilhite v. Hamrick, 92 Ind. 594; Dale v. Frisbie, 59 Ind. 531; Maxwell v. Board, etc., 119 Ind. 20.
The act in question consists of five sections, the first of which establishes two rules of descent and apportionment which are in the following words: “If a man dies
If the act could be held retroactive, there is no reason for holding that it was not intended to reduce the interest held by the widow under the prior statutes, as construed by this court, as well as to reduce or take away entirely the interest which, under such prior statutes so construed, the children should receive upon the death of the widow.
If the act in question, as contended by the appellant, takes from the appellees their interest .as the forced heirs of the appellant, then it certainly gives the appellant no more than a life estate.
If she gets but a life estate, she has no right of action to quiet the title to her in fee. To reach any other conclusion from the contention of the appellant, it would be necessary to strike down the act so far as it affected the vested interest of the widow, and uphold it so far as it affected the rights of the appellees.
We conclude that upon the death of Henry Rogers, the appellant as widow took the one-third subject to the right of the appellees, upon her death, to the fee; this the Legislature did not intend to disturb, either by enlarging or diminishing the appellant’s interest, nor was it intended to take from the appellees the rights held by them. It is manifest that the act in question was not intended to deprive the children of all interest in the one-third so provided for the widow, who was a second and childless wife, but it was to relieve from confusion
The judgment of the lower court is affirmed.