144 Ind. 382 | Ind. | 1896
The appellants brought this suit against the appellees to quiet their title in certain land situated in Morgan county, described in the complaint. The issues formed were tried by the court without a jury, resulting in a special finding of facts on which the court stated conclusions of law favorable to the appellees, Otto Rushton and William F. Harvey, upon which they had judgment. The conclusions of law are assigned for error.
The material facts found are that Joshua Rushton, on July 11, 1877, was the owner of 120 acres of land in said county particularly described; that on that day said Rushton duly executed his last will and testament, by which he devised to his wife, Sally Rushton, $400.00 and one-third of all the rents and
It is contended by the appellant that the land set off to the widow, though she be a childless second wife, did not descend from her to the children of her deceased husband by a former marriage, as provided by the statute, but passed by virtue of the will to the legatees named in the residuary clause of the will. • The appellees contend that it descended under the statute from the widow to the children of her husband, by the former marriage, surviving him and the descendants of such as were dead.
Under section 2640, R. S. 1894 (R. S. 1881, section 2483), a widow inherits one:third of the real estate of her deceased husband in the absence of creditors, whether he dies testate or intestate, and she can only be divested of her interest by accepting the provisions of a will, or, as the statute now is, by her failure to make her election whether she will take under the law within one year after the probate of the will. Collins v. Collins, 126 Ind. 559; R. S. 1894, section 2666 (R. S.
The words “children alive” in the above proviso have been construed by this court to mean children or their descendants alive. Scott v. Silvers, 64 Ind. 76. The above quoted section was amended in 1889, Acts of 1889, p. 430, R. S. 1894, section 2644, so as to vest in such second or other subsequent childless wife a life estate only, instead of a fee simple interest. But that amendment having been made long after the death of Joshua Rushton, the descent was cast and the title vested by virtue of the section before its amendment. The amendment was not intended to have a retrospective effect. The two sections of the statute above referred to having vested the title in fee simple in Sallie Rushton, she having elected to take under the law, relieved it from any control or influence from the will of her husband. When she elected to take under the law the descent was cast and the title vested irrevocably in her in fee simple, and there is only one way by which that title could be divested, and that is by her death. By her death the title did not pass back under the control of the will, but the proviso quoted made the title descend to the children of her deceased husband by a former marriage and to the children of such of them as are dead. Scott v. Silvers, supra. That is what the trial court correctly stated the law to be. But how the court came to the fourth conclusion of law we are wholly unable to conjecture. It was to the effect that Harvey’s sheriff
The execution being issued and the sale being made after the death of Sallie Rushton the title to the undivided one-half of the land so set off to her had descended to Caleb C. Rushton, the judgment and execution defendant before the issue of the execution, there is no apparent reason why the sheriff’s sale was not good.
But that conclusion was favorable to the appellants and they are not complaining, as they could not complain of it. And the appellees have not complained of it by a cross-assignment of error.
The circuit .court did not err in its conclusions of law against the appellants.
The judgment is, therefore, affirmed.
Jordan, J., took no part in the decision of this case.