Dailey v. Pugh, 10921.

• Decision Date: 24 June 1921
• Docket Number: No. 10921.,10921.
• Parties: DAILEY et al. v. PUGH et al.
• Court: Indiana Appellate Court

83 Ind.App. 431

131 N.E. 836

DAILEY et al.

v.PUGH et al.

No. 10921.^*

Appellate Court of Indiana.

June 22, 1921.

June 24, 1921.

Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge.

Action by Alice M. Dailey and others against Samuel Pugh and others. From a judgment for defendants, plaintiffs appeal. Affirmed.Elias D. Salsbury, Frederick Van Nuys, Allen P. Vestal, Phillip Wilkinson, and Walker & Hollett, all of Indianapolis, H. P. Wood, of Selmer, Tenn., Madison & Van Riper, of Dodge City, Kan., and John V. Dye, of Eaton, Ohio, for appellants.

Smith, Remster, Hornbrook & Smith, Newberger, Simon & Davis, Frank B. Ross, Reginald H. Sullivan, and John M. Wall, all of Indianapolis, Palmer & Elliott, of Middletown, Ohio, and Paul Y. Davis and William F. Eliott, both of Indianapolis, for appellees.

BATMAN, J.

Marshall Pugh died, intestate, on May 24, 1919, in Marion county, Ind., leaving surviving him no widow, no child or children, and no descendant or descendants of any child or children, no father or mother, no brother or sister, and no descendant or descendants of any brother or sister, no grandfather or grandmother, no uncle or aunt in either the paternal or maternal line, but leaving surviving him at the time of his death 236 descendants of deceased uncles and aunts, some of whom were his first cousins, and others were the children and grandchildren of certain deceased first cousins. Certain ones of those last named brought this action against the surviving first cousins and others, to quiet their title to an undivided interest in certain real estate in Marion county, Ind., of which the decedent died seized. The first cousins filled cross-complaints against the children and grandchildren of said deceased first cousins to quiet their title to said real estate. The issues joined on said complaint and cross-complaints were tried by the court, and on request a special finding of facts was made, and conclusions of law were stated thereon. The conclusions of law were in favor of said first cousins, and against the children and grandchildren of said deceased first cousins, and judgment was rendered accordingly. The children and grandchildren of said deceased first cousins are now prosecuting this appeal on an assignment of errors, which challenges each conclusion of law stated by the court on the special finding of facts.

The questions presented by this appeal involve the construction of section 2994, Burns' 1914, the first subdivision of which reads as follows:

“If the inheritance came to the intestate by gift, devise, or descant from the paternal line, it shall go to the paternal grandfather and grandmother, as joint tenants, and to the survivor of them; if neither of them be living, it shall go to the uncles and aunts in the paternal line, and their descendants, if any of them be dead; and if no such relatives be living, it shall go to the next of kin, in equal degree of consanguinity, among the paternal kindred; and if there be none of the paternal kindred entitled to take the inheritance as above prescribed, it shall go to the maternal kindred in the same order.”

The second subdivision provides for a distribution in the same order among the maternal kindred, where the inheritance came to the intestate by gift, devise, or descent from the maternal line, while the third subdivision makes provision for distribution in the same order among both the paternal and maternal kindred, one-half going to each line thereof, where the estate came to the intestate otherwise than by gift, devise, or descent.

The construction which the trial court placed on this section was, in effect, that where there are no persons named in sections 1 to 4, inclusive, of the statute of descent, being sections 2990 to 2993, inclusive, Burns' 1914, to inherit, and no grandfather or grandmother, and no uncle or aunt survive the intestate, that the inheritance “shall go to the next of kin, in equal degree of consanguinity,” as provided in the first subdivision of said section 2994. This construction is in harmony with the construction placed thereon in the case of Avery v. Vail (1915) 60 Ind. App. 99, 108 N. E. 599. Appellants contend, however, that this court erred in its decision in that case, and ask that the same be overruled. They assert that in the construction of the first subdivision of said section of the statute, that “uncles and aunts *** and their descendants, if any of them be dead,” should be treated as a class, and that the provision in favor of “the next of kin, in equal degree of consanguinity,” should have no application, where there is a member of such class to inherit. Appellants have supported their contention by able and exhaustive briefs, which we have considered carefully, but have not been convinced that the former decision of this court, involving the same question, is erroneous. One reason in favor of that decision, not mentioned therein, which appeals to us strongly, lies in the difference between the statute of descent enacted in 1843 (Rev. St. 1843, c. 28) and our present statute, enacted in 1852. Section 2994, Burns' 1914, the contents of which we have hereinbefore set out, is section 5 of the act of 1852 (Rev. St. 1852, p. 248), entitled “An Act Regulating Descents and the Apportionment of Estates.” The corresponding section of the act of 1843, relating to the same subject, is numbered 112. Subdivisions 2 and 3 thereof read as follows:

“2. If there be no grandfather nor grandmother as above specified, to take the inheritance, the same shall descend to the brothers and sisters of the father of the intestate; or to such as shall be living and the descendants of such as shall be dead; or if all the brothers and sisters be dead, then to their descendants. (Our italics.)

3. If there be no descendants of such brothers and sisters of the intestate's father, nor other heirs entitled to take according to the preceding provisions of this section, the inheritance shall then go to the nearest of kin, of equal degree of consanguinity, to the intestate, among the paternal kindred.”

[1][2] It will be observed that by the provisions of said subdivisions “the nearest of kin, of equal degree of consanguinity,” do not take as a class, unless not only the grandfather and grandmother and all the uncles and aunts are dead, but also all descendants of uncles and aunts are dead. The inheritance is cast upon this last-named class, viz. “descendants of uncles and aunts,” by the express provision contained in the last line of said subdivision 2, which we have italicized. This is the manner of distribution for which appellants are contending in the instant case, and, if the act of 1843 was still in force, their contention would be clearly right. We note, however, that in the act of 1852 the provision contained in the last line of said subdivision 2 is wholly omitted. This we consider to be a significant fact, in determining the meaning the Legislature intended should be given the particular provision we are now considering. It is well settled that, where a statute is amended or re-enacted in different language, it will not be presumed that the difference between the two statutes was due to oversight or inadvertence on the part of the Legislature; on the contrary, it will be presumed that the language was intentionally changed for the purpose of effecting a change in the law itself, unless it clearly appears to have been made for the purpose of expressing the original intention of the Legislature more clearly. 25 R. C. L. 1050; Eversole v. Eversole, 169 Ky. 793, 185 S. W. 487, L. R. A. 1916E, 593;McLaren v. State, 82 Tex. Cr. App. 449, 199 S. W. 811;San Antonio, etc., Co. v. Southwestern, etc., Co., 93 Tex. 313, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884;United States v. Bashaw, 50 Fed. 749, 1 C. C. A. 653. This rule has been recognized in this state in the following cases: Hasely v. Ensley (1907) 40 Ind. App. 598, 82 N. E. 809, and State ex rel. v. Beal (1916) 185 Ind. 192, 113 N. E. 225. An application of this rule in the instant case leads us to conclude that the omission of the last line in subdivision 2 of said section 112 of the act of 1843, from section 5 of the act of 1852, clearly evidences an intention on the part of the Legislature to prevent the descendants of uncles and aunts from inheriting as a class, where all such uncles and aunts are dead, as they had theretofore done, and to cast the inheritance on “the next of kin, in equal degree of consanguinity,” instead.

[3][4] However, if the argument made and the authorities cited by appellants convinced us that the construction of said section 2994 for which they contend was sustained by the better reason and the greater weight of authority, we would feel impelled nevertheless to adhere to the construction placed on the same by this court in the case of Avery v. Vail, supra, by reason of the doctrine of stare decisis, so often declared and applied in this state. Hines v. Driver (1883) 89 Ind. 339;Pond v. Irwin (1888) 113 Ind. 243, 15 N. E. 272;Legler v. Paine (1896) 147 Ind. 181, 45 N. E. 604;Diamond, etc., Co. v. Knote (1905) 38 Ind. App. 20, 77 N. E. 954. This doctrine is especially applicable where, as in this case, a decision construing a statute affecting the title to real estate has stood for such a length of time as to become a recognized rule of property. The reason for its existence, and the salutary effect of its application, may be found in the following cases: Grubbs v. State (1865) 24 Ind. 295;Rockhill v. Nelson (1865) 24 Ind. 422;Harrow v. Myers (1868) 29 Ind. 469;Carver v. Louthain (1872) 38 Ind. 530;Lindsay v. Lindsay (1874) 47 Ind. 283;Haskett v. Maxey (1893) 134 Ind. 182, 33 N. E. 358, 19 L. R. A. 379; Legler v. Paine, supra; Kinsey v. Union T. Co. (1907) 169 Ind. 563, 81 N. E. 922.

Our attention has been called to the fact that the construction of the statute for which appellees contend rests on a decision in a single case;...