Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1862-02-24

zeDs OF every Southern State the same rights OF
property and all the blessings which they enjoyed
under the Constitution before the war.
MARION COMMON PLEAs.-In this Court, Judge
Ray presiding, the following important decisions
have been rendered during the present term:
Morton ct al Us. English. City Treasurer: Held
that lien for city taxes does not attach upon per
sonal property until the tax duplicate comes into
the hands of the Treasurer.
In the case of Amanda F. Pugh Us. Isaiah
Hornxl;ay, executor, &c, of Isaac Pugh. de-
ceased, the petitioner was the widow Of Isaac
Pugh, who died testate in September, 1901,
leaving personal property OF the value of
twenty one thousand dollars, in which she claims
dstrbutye share
The executor filed demurrer to the petition,
as not containing facts sufficient to constitute
cause of action
| The Court must, under the application and the
demurrer thereto, decide whether the surviving
wife, where there is a will made by her late hus-
band, can claim any distributiye share in his per-
sonal estate, when she does not elect to take un-
\ der the will
Sec IL of the law of descents is as follows:
"If husband die testate or intestate leaving
widow one-third ofhis real estate shall descend to
her in fee simple, free from all demands of credi-
tors; provided however, that where the real estate
exceeds in value ten thousand dollars, the widow
shall have one forth only, and where the real es-
tate exceeds twenty thousand dollars one-ffth
only as against creditors"
1 Sec. q is as follows:
"a surviving wife is entitled, except as in sec
ton IL excepted, to one-third of all the real
estate of which her husband may have been
seized in fee simple at any time during the mar
riage, and in the conveyance of which she may
not have Joined, in due form of law; and also of
all lands in which her husband had an equitable
interest at the time of his death" To fill out
the section it would read thus: "a surviving
wife is entitled, except when the real estate
ceeds SO 1000, when she shall have one fourth
only, or when it exceeds $40, 000 when she shall
have one-fifth On y, as against creditors: to one
third of all the real estate of-which her husband
may have been seized in fee simple, during the
marriage, and in the conveyance of which she
NAV not have joined, in due form of law; and
also of all lands in which her husband had an
equitable interest at the time of his death: Pro-
| yided That If the husband shall have left will, ,
the wife may elect to take under the will instead
of this or the foregoing provisions of this act"
These two sections regulate the interest that
the surviving wife shall take in the real estate Of
her husband, and in the real estate owned by him
during marriage, and in which she has not re-
leased her interest, as also in any equitable in
terest in lands held by her husband at the time
| of his death, whether or not the husband has
I
that she may elect to take under the will and not
under sections IL, 10, 20, 81, and 81, under
which or some of which she must take, unless
she elect TO take under the will. All Of the
sections referred to provide what interest in either
real or personal estate or BOTH the widow shall
take, whether the husband die teState or ntestate
When a will has been made. the wife still takes,
not under the will, but under some of the pro-
| visions contained in these sections, unless she
t0ff tiva al 10 faEo nd fba will
The statute provides that so far as these Sec
tons apply she can take as though no will ex-
isted
1t is, however, insisted that when widow does
hot elect to claim under the WILL as to her no will
exists, and she may and does take under any Sec
ton of the law that regulates descent as though
no will had been made and the petitioner claims
distributive share in the personal estate of her
husband under the 24th section of the same law.
This section reads as follows:
off man die intestate, leaving widow and
child or children, not exceeding two, the personal
property of such estate shall be equally divided
| among the widow and children, the widow taking
an equal share with one child; but if the number
Of children exceeds two, the widows share shall
not be reduced below one-third of the whole"
This is followed by proviso relating only TO
real estate, and having nothing to do with the
provisions Of this section.
1t will be observed that by express language
this section only can apply to the disposition of
an estate where no will has been made The
other sections by terms equally express, apply
whether the husband die testate intestate. So
far as they are involved the wife takes as though
no will existed; but this is not by construction of
the Court, but by the terms of the law. The
Court can not legislate away an express restric-
ton of the statute The hardship of the pro-
visOn if there is any, is for the consideration of
those who make the law, not for those who adj
minister it.
| The husband having died testate, the petition
er not claim under provision of the statute
limited by its terms to case where no will has
been made. She has no claim to any distributive
share in the personal estate of her deceased hus-
band.
The demurrer to the petition will be sustained.