Rogers v. Rogers
| Decision Date | 30 March 1894 |
| Docket Number | 16,716 |
| Citation | 36 N.E. 895,137 Ind. 151 |
| Parties | Rogers v. Rogers et al |
| Court | Indiana Supreme Court |
From the Jefferson Circuit Court.
The judgment is affirmed.
C. E Walker, for appellant.
A. D Vanosdol, H. Francisco, C. A. Korbly and W. O. Ford, for appellees.
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.
The appellant's action was to quiet title, and, in her complaint, to which the circuit court sustained a demurrer, she claimed a fee-simple title, not only in the two-thirds subject to sale for the payment of the debts of the estate, but in the one-third taken by her as widow.
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. 530; Maxwell v. Board, etc., 119 Ind. 20, 19 N.E. 617.
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 intestate leaving a widow and child or children, not exceeding two, the personal property of such intestate shall be equally divided among the widow and children, the widow taking an equal share with one child, but if the number of children exceed two, the widow's share shall not be reduced below one-third of the whole: Provided, that if a man marry a second or subsequent wife and has by her no children, but has children alive by a former wife, the interest of such second or subsequent childless wife in the lands of the decedent shall only be a life estate, and the fee of the same shall at the death of such husband vest in such children, subject only to the life estate of the widow." The second and third sections of the act create estoppels where conveyances have been made by the wife, of a supposed life estate, and by the children of a supposed fee, and the rights of litigants in pending suits are saved. The fourth section is as follows: "The provisions of this act shall not apply in any case where the second childless wife has died and the estate become vested in the heirs of the deceased husband." The fifth section declares an emergency. It is not our purpose to construe other sections of the act than the first, but...
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