Lindsay v. Lindsay

47 Ind. 283

• Court: Indiana Supreme Court
• Decided: May 15, 1874
• Status: Published

Opinions

Osborn, J.

This was a complaint for partition filed by the appellants against the appellees. A demurrer v/as filed to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which was sustained. The appellants excepted, refused to amend, and final judgment wras rendered against them.

The error assigned is in sustaining the demurrer to the complaint.

The facts, as they appear in the complaint, are, that Elijah Lindsay died, in 1870, seized of several tracts of land situate in this State, amounting in the aggregate to between six and seven hundred acres, and several lots in the city of Aurora. He left surviving him Mary Lindsay, his widow, and brothers and sisters, and the descendants of deceased brothers and sisters, as his only heirs at law. On the 26th day of December, 1866, he made and published his will, by which he devised his whole estate to his wife during her natural life, except two parcels of land, one of eighty acres and one of sixty acres.

'He bequeathed to Melville R. Cannon, one of his nephews, a life estate in the eighty-acre tract; he to pay to decedent’s widow one-half the proceeds thereof during his natural life, with a contingent remainder in fee to his children.

He also bequeathed to his niece by marriage, Caroline A. Vail, wife of Benjamin T. Vail, an estate for the life of his widow, she paying to his widow one-half of the proceeds thereof, with remainder in fee to said Caroline and her children. The remainder of his estate was undevised.

On the 23d of August, 1869, he made a codicil, by which, he changed the description of the land bequeathed to Mrs. "Vail, so as to increase it to seventy acres; and he made a few small bequests to some of his nieces and a nephew.

Mary Lindsay, widow of the decedent, elected to take under the law, and not under the will.

The action was brought by the brothers and sisters, and the descendants of deceased brothers and sisters of the said Elijah Lindsay, against Mary Lindsay, his widow, and Caroline A. Vail, to whom the bequest was made, and her husband, for a partition of the undevised real estate, of which Elijah Lindsay died seized.

It is quite likely that the testator supposed that his next of kin would inherit his estate not devised, and that on the death of his widow it would descend to his brothers and sisters then living, and to the descendants of such as were dead. Whatever might have been his opinion on that question, it is clear that he intentionally left a large part of his estate undisposed of by his will; and whether it was the result of his ignorance of the law or from some other cause, we are not at liberty to change it.

If sec. 26, 1 G. & H. 296, was in force at the death of the testator, then,‘under the ruling of Armstrong v. Berreman, 13 Ind. 422, the whole of the undevised estate descended to the wúdow, and the demurrer to the complaint was correctly sustained.

If sec. 4, Acts 1853, p. 56, is in force, then the estate descended, one-third to the widow, and two-thirds to the brothers and sisters living, and to the descendants of such as were dead. Sec. 4, 1 G. & H. 292.

We are entirely satisfied with Armstrong v. Berreman, supra, and adhere to it. We think that sec. 26, supra, should be construed as if it provided that if a husband or wife die, leaving any estate undevised, and leaving no child, and no father or mother, the whole of such estate shall descend to the survivor; that the word “ intestate ” refers to property, and not to the decedent.

The act of March 9th, 1867, 3 Ind. Stat. 573» repealed sec. 4 of the act of March 4th, 1853, supra. Leard v. Leard, 30 Ind. 171. We do not consider it necessary to review the opinion in the case last cited, or to elaborate one on the same point in this, or to cite authorities in support of the position that acts may be repealed without reference to their titles, or the particular act repealed, in the repealing act.

A single act may repeal all laws on any given subject, or all in force, and laws may be repealed by express enactment or by implication. The title of the act of March 9th, 1867, was sufficiently certain to indicate what laws were repealed. It was “ for the repeal of statutes, not in conformity with the ruling of the Supreme Court in the case of Langdon v. Applegate, and others.” A reference to that case, 5 Ind. 327, will show that the statutes repealed are amendatory acts, which omitted to set forth the act revised, or section amended.

We adhere to Leard v. Leard, supra. See DeMoss v. Newton, 31 Ind. 219; Pierce v. Pierce, 46 Ind. 86; Nebeker v. Rhoads, 30 Ind. 330, following Leard v. Leard, supra.

The judgment of said Dearborn Common Pleas is affirmed, with costs.

Downey, J., was absent.