Stiers v. Mundy

• Citation: 174 Ind. 651,92 N.E. 374
• Decision Date: 01 July 1910
• Docket Number: No. 21,715.,21,715.
• Parties: STIERS et al. v. MUNDY et al.
• Court: Supreme Court of Indiana

174 Ind. 651

92 N.E. 374

STIERS et al.

v.MUNDY et al.

No. 21,715.

Supreme Court of Indiana.

July 1, 1910.

Appeal from Circuit Court, Rush County; Wm. M. Sparks, Judge.

Action by Minnie M. Mundy and others against Sarah E. Stiers and others. From a judgment for complainants, defendants appealed to the Appellate Court, whence the cause was transferred on petition to the Supreme Court, though not till after an opinion had been rendered. Judgment of trial court affirmed.

For opinion of Appellate Court, see 89 N E. 959.

Douglass Morris, for appellants. Smith, Cambern & Smith, for appellees.

MONKS, C. J.

Appellees brought this action for partition and to quiet title. The court, at the request of the parties, made a special finding of facts and stated conclusions of law thereon. It appears from the special finding that Frances L. Hildreth died testate November 27, 1903, the owner of the real estate in controversy; that her will, which was duly admitted to probate, gave all of her real estate to James M. Hildreth, her husband, during his life, and upon his death it was directed that said real estate be sold and the proceeds divided among appellees, the heirs of said Frances L. Hildreth, the testator; that said James M. Hildreth, who was his wife's only heir at law, never filed an election to take under the will, but held possession of said real estate until March 27, 1907, on which day he died intestate, leaving appellants as his only heirs at law. The court stated as its conclusion of law that “no one of appellants has any right, title, or interest” in said real estate, and rendered judgment accordingly.

If said James M. Hildreth took and held said real estate under the will of his wife, this case must be affirmed; otherwise it must be reversed.

Under section 22 of the act of 1852 (1 Rev. St. 1852, c. 27, p. 251, being section 2485, Rev. St. 1881), and section 5 of the act of 1853 (Acts 1853, p. 55, being section 2488, Rev. St. 1881), if the wife die testate or intestate leaving a widower, one-third of her property, real and personal, descended to such widower. Said section 22, being section 2485, Rev. St. 1881, was amended by section 1, and said section 5, being section 2488, Rev. St. 1881, was amended by section 2 of the act of 1891 (Acts 1891, pp. 71, 72). Said section 22 was amended by adding a proviso that: “If the wife shall have left a will, such widower may elect to take under the will instead of this or any other law of descents of the state of Indiana which election shall be made within ninety days after said will has been admitted to probate in this state and in the same manner as widows are now required to elect in such cases.” Section 2 of said act of 1891, which amended section 5 of said act of 1853, is the same as the above, except that it refers exclusively to personal property.

In 1901 (Acts 1901, p. 118, being section 2649, Burns' Ann. St. 1901) the Legislature passed an act entitled “An act to amend section two,” etc., of the act of 1891, supra, which act of 1891 as so amended reads as follows:

“Section 1. If the wife die testate leaving a widower, one-third of her real estate shall descend to him, subject, however, to its proportion of the debts of the wife contracted before marriage; provided, if the wife shall have left a will, such widower may elect to take under the will, instead of this or any other law of descends of the state of Indiana, which election shall be made within ninety days after said will has been admitted to probate in this state and in the same manner as widows are now required to elect in such cases.

“Sec. 2. The personal property of the wife held by her at the time of her marriage or acquired during coverture by descent, devise, gift or in any other manner, shall remain her own property to the same extent and under the same rules as her real estate so remains, and on the death of the husband before the wife such personal property shall go to the wife and on the death of the wife before the husband shall be distributed in the same manner as her real estate descends and is apportioned under the same circumstances; provided, if the wife shall have left a will her surviving husband shall take under the will of his late wife unless he shall make his election whether he will take the lands so devised or the provisions so made, or whether he will retain the right to one-third of the land of his late wife, but he shall not be entitled to both unless it plainly appear by the will to have been the intention of the testatrix that he should have such lands or pecuniary or other provision thus devised or bequeathed in addition to his rights in the lands of his wife,” etc.

Under the decisions of this court, the mere fact that the proviso of the amendatory act of 1901, being section 2 above set out, refers to matters not germane to the subject-matter of the particular section it purports to amend, does not render it unconstitutional and void, if the subject-matter incorporated in the amendment is within the purview and is germane to the title of the act amended. Lewis v. State, 148 Ind. 346, 47 N. E. 675, and cases cited; Rose v. State, 171 Ind. 662, 87 N. E. 103, and cases cited; State v. Bock, 167 Ind. 559, 563, 79 N. E. 493.

The subject of said acts of 1852, 1853, and the amendatory acts of 1891 and 1901, as expressed in the titles, was “An act regulating descents and the apportionment of estates.” It is clear that said acts embraced but one subject and matters properly connected therewith, which subject was expressed in the title thereof in all respects as required by section 19, art. 4, of the Constitution of this state. It is clear, therefore, that said proviso is within the purview and is germane to the title of said acts of 1901, 1891, 1853, and 1852.

It is a rule of statutory construction that the amendment of a statute by a subsequent act operates from that time precisely as if the subject-matter of the amendment had been incorporated in the prior act at the time of its adoption, for the amendment becomes a part of the original act, from the date such amendment is in force, whether it be the change of a word, figure, line, or entire section, or a recasting of the whole language. Walsh v. State, 142 Ind. 357, 362, 41 N. E. 65, 33 L. R. A. 392;Cain v. Allen, 168 Ind. 8, 16, 79 N. E. 201, 79 N. E. 896;Pomeroy v. Beach, 149 Ind. 511, 513, 49 N. E. 370;Russell v. State, 161 Ind. 481, 68 N. E. 1019;State v. Bock, 167 Ind. 559, 564, 79 N. E. 493;State v. Adams Ex. Co., 171 Ind. 138, 141, 85 N. E. 337, 966, 19 L. R. A. (N. S.) 93, and cases cited; Parks v. State, 159 Ind. 211, 215, 216, 64 N. E. 862, 59 L. R. A. 190;Blakemore v. Dolan, 50 Ind. 194, 204; 2 Lewis' Sutherland, Stat. Con. § 448; Sutherland on Stat. Con. § 288; Endlich on Stat. Con. § 294; Black on Interpretation of Laws, p. 357.

What is the effect, if any, of said section 2 of the act of 1891, as amended in 1901, on section 1 of said act of 1891?

It will be observed that, under section 1 of said act of 1891, “if the wife shall have left a will,” the husband takes under the law of descents, unless he elects to take under the will, while under said section 2, as amended in 1901, he takes under the will if he makes no election. The rule as to making an election enacted in said section 2, as amended in 1901, above set out, is in direct conflict with the rule on that subject enacted in section 1 of said act of 1891, above set out.

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