Hendrickson v. Hendrickson

• Decision Date: 26 November 1855
• Citation: 7 Ind. 13
• Parties: Hendrickson v. Hendrickson and Others
• Court: Indiana Supreme Court

7 Ind. 13

Hendrickson v. Hendrickson and Others

Supreme Court of Indiana

November 26, 1855

From the Bartholomew Circuit Court.

The judgment is affirmed with costs. Cause remanded, with instructions to dismiss the petition without prejudice, with leave to the petitioner to withdraw it from the files.

W Herod and S. Stansifer, for appellant.

W. F Pidgeon, for appellees.

OPINION

Stuart J.

On the 22d of August, 1853, Emily, the widow of John Hendrickson deceased, filed her petition for partition, making the children and heirs of her husband defendants.

The petition states that John Hendrickson, her late husband, died in December, 1852, intestate, leaving the plaintiff his widow, and the several defendants his heirs, (naming them.) It is further alleged that he died seized of certain real estate, (describing several tracts of land). Among other things, it is stated that the revised statutes of 1852 were filed in the clerk's office of Bartholomew county on the 1st day of May, 1853. The plaintiff denies and disclaims any right of dower in the premises described in the petition, under the law of descents of 1852. She states that she is advised she is entitled to one-third of said land in fee simple, the same not being worth 10,000 dollars, and that the defendants, the children and heirs of the said John, are entitled each to one-twelfth part of the remaining two-thirds thereof. Wherefore she prays partition, and that commissioners be appointed to allot and set off her one-third part in fee; and that she have such other relief as may be proper, &c.

Demurrer to the petition sustained, and judgment for costs against the petitioner. She appeals.

The act under which she seeks to be invested with one-third of her late husband's real estate, is chapter 27, 1 R. S. 248. It is entitled "an act regulating descents and the apportionment of estates," approved May 14, 1852. The 17th section provides that--"If a husband die, testate or intestate, leaving a widow, one-third of the real estate shall descend to her in fee simple, free from all demands of creditors; provided, however, that where the real estate exceeds in value ten thousand dollars, the widow shall have one-fourth only," &c.

The previous section, the sixteenth, abolishes tenancies by the courtesy and in dower. 1 R. S., 250.

The 44th section declares, that the act is to be in force from and after the 1st day of August, 1852. Id. 255.

It is claimed that this act was in force at the death of her husband, in December, 1852, and therefore contains the measure of her rights as his widow. And the course of reasoning is this: that declaring it in force from a day prior to the taking effect of the revised statutes of which it formed a part, was in the nature of and equivalent to a declaration of emergency.

The first inquiry will therefore be, whether the new act regulating descents was in force at her husband's death, in December, 1852.

If so in force, it must have been either by virtue of the emergency clause, or it must have been published in pursuance of the 44th section of the act, and circulated in the several counties prior to the 1st day of August, 1852.

The constitution, section 28, article 4, provides that--"No act shall take effect, until the same shall have been published and circulated in the several counties of this state, by authority, except in case of emergency; which emergency shall be declared in the preamble, or in the body of the law." 1 R. S., 53. It is hardly necessary to say that the declaration of emergency here contemplated could not be taken by implication; it must...