Rockhill v. Nelson and Others. the other facts stated in the complaint are not sufficient to show a cause of action against the appellants. The cause is reversed and remanded, with directions to the court below to sustain the demurrer filed by the sureties to the complaint, and grant leave to the plaintiff to amend. F. Collins, F. Wilson and A. M. Black, for appellants. A. J. Simpson, J. E. McDonald and A. L. Roache, for appellee. APPEAL from the Allen Circuit Court. GREGORY, J.-The plaintiff in this case is the widow, having been the third wife, of William Rockhill, who died seized in fee simple of the land in dispute. He had by the plaintiff one child, which died, in infancy, a short time before his death. The defendants are the children of the deceased husband by a former wife. The widow claims one-third of the land of which her husband died seized, in fee. The defendants insist that she is entitled to a life estate only. The rights of the parties depend upon the construction to be given to our law of descent. By the seventeenth section of that law, the surviving widow takes one-third, in fee, of all the lands of which the husband died seized. By the twenty-seventh section, she takes, as the heir of her husband, one-third, in fee, of all the land owned by the husband at any time during coverture, in the conveyance of which she has not joined, and onethird, absolutely, of all equitable estates owned by him at Rockhill. Nelson and Others. his death. Under these sections, the plaintiff would take one-third of the real estate of her deceased husband in fee. The only inquiry will be, how, and to what extent, does the proviso to section 24, (1 G. & H. 296,) affect or modify sections 17 and 27; the former preceding, and the latter following section 24? The proviso is in these words: “Provided, that if a man marry a second or other subsequent wife, and has by her no children, but has children alive by a previous wife, the land which, at his death, descends to such wife, shall, at her death, descend to his children." In an able and well considered brief, the learned counsel of the appellant argue thus: "The language of this proviso is, in some respects, unmistakably clear. Something descends to the wife. What is it? If anything, it is onethird of her husband's real estate, not a life interest in his real estate. The proviso does not intimate such a thing. If the one-third does not descend to the widow, to whom does it descend? Not to the children or heirs, for by the clear and express words of the proviso, they take whatever they may be entitled to, not at the death of the husband and father, but at the death of the widow. They take, not from the father, but from his widow. They take from her, at her death, nothing but what she, as heir of her deceased husband, took at his death. If she takes less than a fee, the children take nothing at all. Prior to the widow's death, they can have no interest in the land which descends to her at her husband's death. "If it shall be said that the widow takes but a life estate, then this clause, which by a strained and unnatural construction is made to reduce the widow's interest from a fee to a life estate, becomes absurd and nonsensical. For it is too clear to admit of doubt, unless words have lost all significance, that it was the purpose of this proviso to cast upon the husband's children, at the death of the widow, whatever she might then possess as the heir of the husband. To give effect to the plain and obvious meaning of this proviso, it must be held, we think, that the whole interest in Rockhill v. Nelson and Others. one-third of the deceased husband's lands descends, at his death, to his widow. That no part of this interest then descends to his children, for the simple reason that it is to descend to them, if at all, at the death of the widow. That it simply prescribes a rule of descent, making the husband's children, in the particular case, the special, substituted heirs of the second or subsequent wife.” This position, so forcibly put, addressed to this court before the decision in the case of Martindale v. Martindale, 10 Ind. 566, would have been entitled to grave consideration; and it is, indeed, difficult to see how it could have been met by legal argument. But there are some questions in law, the final settlement of which is vastly more important than how they are settled; and among these are rules of property, long recognized and acted upon, and under which rights have vested. It must be admitted that our law of descents, among the most important on our statute book, is not remarkable for precision and clearness, and that vexatious questions are often occurring, requiring judicial interpretation of this statute. We cannot change a decision without producing confusion in titles, as the ruling would necessarily relate back to the time the law came in force. But if the canon of descent, as settled by the determination of the court of last resort, is unjust, or even distasteful, the legislature can change the rule by a new statute, without interfering with vested rights. As now constituted, however much we may differ from the opinions of our predecessors, we shall not introduce doubt and confusion in questions of property, by overruling the previous decisions of this court. We have had occasion, in the last few months, to overrule a number of cases, but only in that class in which the rulings operate upon the future, and not upon the past, and which, in our opinion, will be attended by unmixed good. The cases of Martindale v. Martindale, supra, and Ogle et al. v. Stoops et al., 12 Ind. 380, were decided some six or seven years ago, and the rule therein established has Fitch and Another v. The City of Madison and Another. been acquiesced in by the legislature through three general, and one special, sessions, and ought not now, in our opinion, to be disturbed by this court. The judgment is affirmed, with costs. J. L. Worden and Morris & Williams, for appellant. FITCH and Another v. THE CITY OF MADISON and Another. CITY OF MADISON. – TAXATION. — The charter of the City of Madison provides that a tax for municipal purposes may be assessed upon all personal property owned by, or in the possession of, any inhabitant of the city, "except goods and produce for export, or in transit." A, being engaged in pork packing in said city, and having all of his capital invested in pork held for export, and in process of shipment to a foreign market, refused to return the same for taxation, and was thereupon assessed for "capital invested in pork, $50,000," and taxes charged against him upon that sum. Held, that the assessment was illegal, because the property, if taxable, should have been assessed as pork, and not as "capital." Held, also, that the pork, being "produce for export," was not subject to taxation under the city charter. The City of Madison et al. v. Fitch et al., 18 Ind. 33, overruled. APPEAL from the Jefferson Circuit Court. ELLIOTT, C. J.-The appellants filed their complaint in the Circuit Court to enjoin the collection of certain city taxes, alleged to have been illegally assessed against them. A demurrer was sustained to the complaint. The principal question raised is as to the power of the city, under its charter, to levy a tax on the capital invested by the appellants in pork, for export to a foreign market. The facts alleged in the complaint, so far as it is necessary to state them for the purpose of a proper understanding of the question, are these: Fitch & Son were residents of the City of Madison, Ind., and, for several years, were Fitch and Another v. The City of Madison and Another. engaged in the business of buying, slaughtering and packing pork, which they shipped to, and sold in, a foreign Inarket. They had from thirty to thirty-five thousand dollars of capital invested in the business in the years 1860 and 1861. Between the 1st of April and the 1st of July of those years, their entire capital was invested in pork, then ready for, and in process of, transportation. They had no money on hand during that period. In the month of May of each of those years, they were called upon by the city assessor for a list of their personal property subject to taxation for city purposes, but they informed the assessor that they had no personal property subject to taxation by the city; that their entire capital was then invested in pork for export, which they claimed was not subject to taxation by the city. But the assessor, afterward, without their knowledge or consent, each of said years, entered upon his assessment roll, and assessed against them, as "capital invested in pork, $50,000." Upon this sum, the city council made a levy for the year 1860 of ninety-five cents on each $100, and for the year 1861 of seventy-five cents on each $100. The city collector was proceeding to levy and collect the same by a sale of their personal property. The city is governed by a special charter granted in 1848, and amended in 1849. The original charter subjected to taxation "all real estate, including improvements, situate within the corporate limits of said city; and also a like tax upon all personal property belonging to the residents of said city, or that may be in the possession of said residents." The charter as amended in 1849, subjects to be taxed, all real estate, &c., and all personal property, except "goods and produce for export, or in transit, owned by, or in the possession of, any inhabitant of the city," &c. The assessments in this case, of "capital invested in pork," are clearly illegal. The charter authorizes the city to levy a tax on "personal property," not on the capital invested in a particular business, or in specific property. |