Haugh v. Smelser

66 N.E. 55, 31 Ind. App. 571, 1903 Ind. App. LEXIS 173

• Court: Indiana Court of Appeals
• Decided: January 27, 1903
• Docket: No. 4,275
• Status: Published

Opinions

Wilet, J.

Jesse W. Smelser died intestate the owner of real estate in Kush county of the value of $30,000. He left surviving him the appellee Maria P. Smelser, his widow, who was a third wife. He died childless and neither his father nor mother survived him. The appellants — there being a large number of them — are surviving brothers and sisters or descendants of brothers and sisters of the said decedent. A number of the appellants brought an action against Maria P. Smelser, as widow, and others for partition of the real estate owned by the decedent at his death, upon the theory that the appellee was entitled to the undivided one-third of the real estate as widow, and that the plaintiffs below and all the defendants except Maria P. were entitled to have set off to them the undivided two-thirds as the brothers and sisters and their descendants of said Jesse. A demurrer by appellee for want of facts was sustained to the complaint, and the only question presented by this appeal is the correctness of that ruling. All the plaintiffs and all the defendants below except Maria P. Smelser are joined as appellants.

It is not necessary to set out the complaint, for the statement above fully presents the question for decision, and that question is this: Where a husband dies'intestate and childless, the owner of real estate, leaving a widow, and without father or mother surviving, but brothers and sisters, or their descendants, surviving, does the widow take the entire estate ? This question is answered by the statute and a long line of decisions in this State. Section 2651 Burns 1901 is as follows: “If a husband or wife die intestate, leaving no child and no father or mother, the whole of his or her property, real and personal, shall go to the survivor.” This statute has been construed by the Supreme Court in many cases, and it has uniformly been held that under it, where a wife or husband die intestate, leaving no child, and no father or mother, the whole of the property left goes to the survivor. Armstrong v. Berreman, 13 Ind. 422; Leard v. Leard, 30 Ind. 171; Nebeker v. Rhoads, 30 Ind. 330; DeMoss v. Newton, 31 Ind. 219; Lindsay v. Lindsay, 47 Ind. 283; Langlois v. Langlois, 48 Ind. 60. This statute and these decisions, under the facts averred in. the complaint, vest the title to the real estate in question in appellee. The law, as thus declared for so many years, has become a rule of property in this State, and, if it is unjust or inequitable, relief should be sought through the lawmaking power, and not the courts. There can be but one construction placed upon the plain language of the statute.

Judgment affirmed.