HERITANCE-RIGHT OF INHERITANCE. The right to inherit is not a natural right, and does not inhere in any one, but is a mere creature of law. 3. DESCENT AND DISTRIBUTION (§ 1*)-IN- [and testament, in which he bequeathed to his wife, "in lieu of all her interest in all of my real estate and personal property, the sum of $500 in cash," and, after making certain [Ed. Note.-For other cases, see Descent and other bequests, devised and bequeathed the Distribution, Cent. Dig. §§ 1-6; Dec. Dig. § 1.*] residue of his real and personal estate to 4. DESCENT AND DISTRIBUTION (§ 85*)-IN- his children and their heirs; that on SepHERITED LAND-CONVEYANCES BY WIFE-tember 7, 1875, James R. Lindley, executor of VALIDITY. Under 1 Gan. & H. Rev. St. 1870, p. 294, $18, declaring that if a widow shall remarry, holding real estate by virtue of the previous marriage, she cannot, with or without the consent of her husband, alienate such real estate, a widow's alienation of land which she took by virtue of a previous marriage is void, though her second husband joined therein. [Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 297, 310; Dec. Dig. § 85.*] the will, filed in the Howard circuit court his petition to sell the real estate of the decedent to make assets for the purpose of paying the debts of said decedent; that said court ordered such sale, and notices were duly published and the sale had, the purchaser being one William Elliott; that appellee was named in the executor's petition, but did not appear to said petition nor to the proceedings to sell real estate, but therein wholly made default; that decedent's widow, Rachel Elliott, refused to accept the provisions made for her in said will, but elected to take all her rights under the law as surviving widow; that she afterwards, while the wife of her second husband, Samuel Kizer, executed two 5. JUDGMENT (§ 112*)—Default-ADMISSIONS. By defaulting, a party admits the truth of the allegations of plaintiff's pleading. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 203-206; Dec. Dig. § 112.*] 6. EXECUTORS AND ADMINISTRATORS (§ 349*) SALE OF LAND-ORDER-CONCLUSIVENESS. Deceased left a childless widow and chil-quitclaim deeds, therein conveying all of her dren by a former wife. The personalty proving insufficient to pay debts, the executor petitioned for the sale of land, alleging the existence of the widow and the children of the former marriage, and that such widow owned one-third of the realty. The widow and children defaulting, the trial court ordered a sale of the entire tract of land, except a life estate in one-third thereof. Held that, though the widow took one-third of the land in fee, free from claims of her husband's creditors, the order of sale could not be collaterally attacked, for not only did the trial court have jurisdiction to determine its right to take cognizance of the proceeding, which was one generally within its jurisdiction, but at that time there were two lines of decision as to the nature of the widow's interest, which was one of the matters that had to be determined. [Ed. Note.-For other cases, see Executors interest in said real estate to said William Elliott, said deeds bearing dates of May 18, 1877, and February 22, 1881; that appellant George W. Stone claims to be the owner and holds possession of said real estate under a regular chain of conveyances from said William Elliott; that said Rachel, decedent's widow, died February 27, 1904; that appellee never received from the estate of his deceased father any part thereof, and that he never executed any deed or conveyance of his interest in the real estate described in the pleadings to any one; that each of the other children of Jacob Elliott, deceased, have executed to one of the remote grantors of ap and Administrators, Cent. Dig. §§ 1446, 1449- pellant George W. Stone deeds of conveyance 1455; Dec. Dig. § 349.*] of their respective interests in said real estate. Upon this finding of facts, the court On motion for rehearing. Motion grant- stated its conclusions of law to be with aped. Former opinion overruled. pellee, and in this appellants insist that the trial court erred. For former opinion, see 101 N. E. 309. Blacklidge, Wolf & Barnes, of Kokomo, for appellants. Bell, Kirkpatrick & Voorhis and Wm. C. Purdum, all of Kokomo, for appellee. The first question here presented is: What estate did Rachel Elliott take in the lands of her deceased husband, Jacob Elliott? He died in 1875, seised of the land in fee simple. His widow, Rachel Elliott, had been his sec SPENCER, J. Appellee brought this ac-ond wife and was childless. At the time tion to quiet title to an undivided one twenty-fourth interest in certain lands located in Howard county, and have partition of the same. In a special finding the court found the material facts in the case to be in substance as follows: That Jacob Elliott died testate in Howard county in August, 1875, leaving a widow, Rachel Elliott, who was a second, childless wife, and also seven children by his first wife, of whom appellee was one, also certain grandchildren; that said Jacob Elliott died the owner in fee simple of the lands described in the pleadings; that on June 24, 1875, he duly executed his last will of his death Jacob Elliott had seven living children. The statutes in force at the time of his death, in 1875, must be looked to for an answer to this question, and, upon reading these statutes, it is plain that the answer must be found in the first part of section 17 and the proviso of section 24. These should be read as though they were written as fol lows: For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes death, descends to such wife, shall, at her death descend to his children." 1 G. & H. pp. 294, 295. The Martindale Case was followed. The case of Louden v. James, 31 Ind. 69, decided at the May term, 1869, was the first case in this court in which the creditors of the deceased landowner were involved in the litigation, and, upon its consideration, the mind of the court was directed to the effect of the earlier decisions upon the rights of the widow and heirs as against the creditors. interpretation of the proviso of section 24 was leading to consequences that probably were not considered by the court at the time of the decision of the cases involving only the childless widow and the children of the husband by a previous marriage. In order to evade these consequences, it seems that the court, instead of disapproving and overruling the earlier cases, undertook to distinguish them from the case then under review If the interpretation of these provisions could be undertaken upon consideration of the legislative language, read in the light of the established rules for our guidance in such matters, there would be little difficulty in arriving at the correct result. That the plain words of the statute cast upon the wid-The court perceived at once that the earlier ow by descent one-third of the lands of which her husband died seised, "in fee simple, free from all demands of creditors," is too plain to seriously question; and in the event that the widow has been a second wife and is childless, and the husband left children by a previous marriage, it is just as plain that, upon the death of the widow, such children take the lands which have descended from their father to the widow, by inheritance from her as her heirs.. Upon first impression the words used by the Legislature can have no other import, but unfortunately the court is not at liberty to so treat the matter, but must have due regard to the interpretation heretofore placed upon these provisions. Therefore let us find what the law of this state, applicable to the facts with which we have to deal, was in August, 1875, for then the widow's rights arose, and it was under the law, as interpreted at that time, that her title vested. It must not be overlooked that the claim of title asserted by appellant grows out of the fact that he derives such right as he has pursuant to a sale of the lands to pay the debts of the decedent, Jacob Elliott. The appellant stands in his relation to the widow, and those claiming under her, in the attitude of the creditors, through whose rights he derives his claim. In Martindale v. Martindale, 10 Ind. 566, which was a proceeding in partition by the childless widow against the children of the deceased husband by a previous marriage, the judgment of the lower court was reversed, because the court had set off to the widow one-third of her deceased husband's lands in fee, instead of for her natural life only. This case was followed in Ogle v. Stoops, 11 Ind. 380, and in Rockhill v. Nelson, 24 Ind. 422, which, in its facts, was in all re spects similar to Martindale v. Martindale, supra, the court, which meanwhile had undergone an entire change of judges, sets forth at length the argument of counsel in support of the contention that the statutes meant what they said, and proceeds as follows: "This position, so forcibly put, addressed to this court before the decision in 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 upon the notion that, as between the widow and the children by the previous marriage, the effect of the proviso was to cast upon the tween the children of the previous marriage widow only an estate for life, while, as beand creditors of the estate of their deceased father, the proviso did not have effect to cut the widow under section 17. The court puts down the estate in fee, which descended to the matter in this way: "But the question now here is altogether different. It is not, what does the widow take as against children of the intestate? but it is, what does she take as against his creditors? The statute answers this question so plainly for construction. 'If a husband die testate, or and expressly that there seems to be no room intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors.' 1 G. & H. 294, § 17. And then the language of the proviso to the twenty-fourth section is equally plain, that this fee simple, which, as against creditors, the second wife without children takes on the death of her husband, shall at her death descend to his children.' Language so plain cannot be disregarded." The court says further: "It is not attempted to reconcile the present decision with the broad language contained in the opinions delivered in Martindale v. MartinThose cases dale, and Ogle v. Stoops, supra. then before the court, and nothing beyond." are simply deemed to settle the very question And again: dower, and the seventeenth, as against creditors, "The sixteenth section expressly abolished gives the widow, in a case like this, an estate in fee simple, to go on her death to the hus band's children; and this would be interpreted to mean that the widow takes an estate in dower only, against anybody, whether child or creditor. Does the judicial function go to the extent of overruling the plain language and equally plain intention of the Legislature?" In the case of Longlois v. Longlois, 48 Ind. 60, the assertion that "these cases (Martindale v. Martindale, Ogle v. Stoops, and Rockhill v. Nelson, supra) were again recognized as a correct exposition of the statute in the case of Louden v. James, 31 Ind. 69," should be considered with the opinion in that case, was seriously impressed with the correctness | ard, 90 Ind. 63; Duncan v. Gainey, 108 Ind. of these earlier cases, and it must be remem- 579, 9 N. E. 470. bered that the Longlois and Martindale Cas to subject his lands to the payment of his debts, his action was for and on behalf of the creditors, whom he represented, and his petition was in the nature of a bill to foreclose the lien. The executor propounded his petition, procured the order of sale, and sold the lands in his representative capacity for and on behalf of his cestuis que trustent, the creditors. He was their trustee; what he did, they did. When, therefore, the executor of the will es were the same kind of cases and presented of Jacob Elliott was proceeded by petition in the same way (that is, a partition proceeding by a childless widow against the children of her deceased husband by a prior marriage), and in the Longlois Case the court awarded the widow only an estate for life upon the rule of stare decisis. This case was decided at the November term, 1874, and was the last expression by this court upon the subject prior to the death of Jacob Elliott (August, 1875), as in Russell v. Russell, 48 Ind. 456. What was the state of the law relating to the subject in issue at the time of Jacob Elliott's death? The controversy in the case under consideration is not between the childless widow and the children of her deceased husband by a previous marriage. It is between one of the children by the previous marriage and one who claims under, and stands in the shoes of, creditors. He The source of the title of the appellant, therefore, was the lien which the creditors of Jacob Elliott had upon the lands. claims under the creditors, and his title is the same that the title of the creditors would have been if they had purchased the land is that the controversy here is between a at the executor's sale. The result of this descendent of Jacob Elliott and one who It is quite clear that, at the time of the stands to him and to the land in the reladeath of Jacob Elliott, there were two dis- tion of a creditor. At the time that he died, tinct lines of decisions by this court involv- it was the law of this state that, as between ing the interpretation of section 17 and the his children by a previous wife and his credproviso of section 24 of the statute of de-itors, one-third of his lands descended to his scents; one line affirming that under these provisions the childless widow took, as against the children of her husband by a previous marriage, only an estate for life, the other line declaring that, as between the children of the previous marriage and creditors of their deceased father, the estate which descended to the widow was an estate in fee simple, which, upon her death, descended to the children from her. Within which of these rules does the case at bar fall? [1] The executor of the last will of Jacob Elliott was in the nature of the trustee of an express trust. He was the representative of the estate and of the creditors. Blanken baker v. Bank of Commerce, 85 Ind. 459; Moncrief v. Moncrief, 73 Ind. 587; Bennett v. Gaddis, 79 Ind. 347; Henry v. State ex rel., 98 Ind. 381; Raugh v. Weis, 138 Ind. 42, 37 N. E. 331; Nugent v. Laduke, 87 Ind. 482; Smith v. Calloway, 7 Blackf. 86; Hildebrand v. Kinney, 172 Ind. 447, 87 N. E. 832, 19 Ann. Cas. 788; Nelson v. Hart, 8 Ind. 293; Pierce v. Holzer, 65 Mich. 263, 32 N. W. 431; Ford v. First National Bank, 201 Ill. 120, 66 N. E. 316; Dandridge v. Martha Washington Ex'rs, 2 Pet. 370, 7 L. Ed. 454; 18 Cyc. 206a, notes 59, 60, 61; 18 Cyc. 708; Ledaux v. Bank, 24 App. Div. 123, 48 N. Y. Supp. 771; Bartlett v. Hyde, 3 Mo. 490; Hughes v. Menefee, 29 Mo. App. 193. [2] When it developed that the personal effects of the decedent were insufficient to pay the debts and liabilities of his estate, the law made his general debts a lien upon his lands, subject, of course, to the statutory rights of the widow. Chaplin v. Sullivan, 128 Ind. 50, 27 N. E. 425; Falley v. Gribling, 128 Ind. 110, 26 N. E. 794; Dunning v. Sew widow in fee simple, and, in respect to the lands which so descended to her, the chilstood in relation to her as expectant heirs. dren by the previous wife of Jacob Elliott Some confusion has arisen in the opinions of this court arising out of the idea, apparently, that the laws of nature have something been attempts, by the use of the word "foreto do with the making of heirs. There have ed" and other words of description, to distinguish the heirs designated by the proviso of section 24 from the heirs who are related to the ancestor by blood. The supposition upon which this has been done is erroneous. [3] The right to inherit is not a natural right. It does not inhere in any one. It is a creature of the law, and its existence and limitations must be found in the law. 2 Blackstone, Com. (chapter 1) 10, 11, 12, and 13; United States v. Perkins, 163 U. S. 625, 16 Sup. Ct. 1073, 41 L. Ed. 287; Plummer v. Coler, 178 U. S. 115, 20 Sup. Ct. 829, 44 L. Ed. 998; Strode v. Commonwealth, 52 Pa. 181; In Matter of Wilmerding, 117 Cal. 281, 49 Pac. 181; Mager v. Grima, 8 How. 490, 12 L. Ed. 1168; Dawson v. Godfrey, 4 Cranch, 321, 2 L. Ed. 634; Henson v. Moore, 104 Ill. 403; Sturgis v. Ewing, 18 Ill. 176; Carpenter v. Pennsylvania, 17 How. 456, 15 L. Ed. 127; Magoun v. Illinois, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037; Eyre v. Jacob, 14 Grat. (Va.) 422, 73 Am. Dec. 367; Knowl-` ton v. Moore, 178 U. S. 41, 20 Sup. Ct. 747, 44 L. Ed. 969; 2 Washburn, Real Property, p. 400, § 9; In re Mulford, 217 III. 242, 75 N. E. 345, 1 L. R. A. (N. S.) 341, 108 Am. St. Rep. 249, 3 Ann. Cas. 986; In re Speed, 216 Ill. 23, 74 N. E. 809, 108 Am. St. Rep. 189; National Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N. E. 973, Ann. Cas. 1912B, 430; Cloud v. Bruce, 61 Ind. 171; Anderson v. Ownership does not extend beyond the life of the owner. The right to transmit title to property to another at the end of the life of the owner did not exist always. It was granted by law, upon considerations of public policy, and the lawmaking power has always retained and still has the authority to designate who shall inherit. When, therefore, the General Assembly of Indiana, by enacting the statute of descents designated in each of the several instances who should take the lands of a deceased owner upon the event of his death, it constituted the persons designated "heirs," and among heirs there are no degrees or distinctions, since the right of one to inherit depends upon precisely the same authority as the right of another, namely, the statutes. The children of the deceased husband by a previous wife are heirs to the childless widow, precisely in the same sense, and by the same authority, as the same children were heirs to their father. The statute made them heirs in each instance, and it might have cast the inheritance upon any other class of persons with equal effect. The section was amended in 1879 (R. S. 1881, § 2484), but the amendment is not material here. The purposes of the General Assembly in the enactment of this provision were two at least: To prescribe that the lands which the woman shall have inherited from her previous husband shall not be disposed of upon the instigation of a subsequent husband, and to leave the same subject to descent to the children of the husband, from whom the lands came to the woman, as prescribed in section 18 and in the provision of section 24. Vinnedge v. Shaffer, 35 Ind. 341; Schlemmer v. Rossler, 59 Ind. 326. These quitclaim deeds were within the very words of the statute and were in consequence void. [5, 6] The petition of the executor to sell the lands of the decedent, Jacob Elliott, to make assets for the payment of his debts, seems to have been in all things sufficient, under the statutes in force at the time of the proceedings. There was proper notice; the widow and the children of the decedent made default; and the proceedings of the court culminating in a decree for the sale of the whole of the lands, subject only to an estate in one-third part thereof in the widow during the term of her natural life, were It is concluded, therefore, that in 1875, in regular and in due form. It was alleged when Jacob Elliott died, in view of the facts in the petition that "said decedent left surapparent upon the face of the record in this viving him his widow, Rachel Elliott, who, cause, the childless widow, Rachel Elliott, being his second wife, and having no chilinherited from him one-third part in value of dren by the decedent, and the decedent havhis lands in fee simple, "free from all de- ing surviving children by a former wife, mands of creditors"; that the fact that her owns but a life estate in one-third of said deceased husband left surviving him children real estate;" and it was alleged that the by a previous wife did not in any wise af- widow had not elected to accept the provifect her title; and that, during the lifetime sions made for her by her husband in his of the widow, the children of the previous will. These were material allegations, and marriage had no interest in the lands which they presented a question of law for the dedescended to her, and stood in relation to cision of the court. The default was an adthem, and to the widow, in so far as these mission that the facts alleged were true. lands were concerned, precisely in the same It made quite a difference to the estate and relation that any other expectant heirs bear to the creditors of the decedent whether or to their ancestor while he lives. This con- not the part of the lands which had descendclusion requires that other questions presented to the widow upon the death of her hused shall be considered. [4] It is found as a fact by the court that: "By two separate quitclaim deeds, respectiveIly, the said Rachel joined with her second husband, Samuel Kizer, and conveyed the real estate to said William Elliott." Did the execution of these conveyances have any effect upon the title to the lands which descended to the widow? For the purpose of this case, it is necessary to answer this inquiry only in relation to the effect of the deeds after the death of the widow. Whether they operate to convey an estate for the term of her natural life or not is of no moment here. The eighteenth section of the law of descent contains these words: "If a widow shall marry a second or any subsequent time holding real estate in virtue of any previous marriage such widow may not, during such marriage, with or without the assent of her husband, alienate such real estate." 1 G. band were "free from all demands of creditors." They were interested in having the court decide whether or not their lien was upon the whole of the lands, subject only to the widow's estate for life in one-third there of, or was upon the undivided two-thirds part thereof only. This was a matter which the creditors, through the executor, their representative, had the lawful right to present to a court of justice for determination, and, when he did present it, it was not only within the power, but it was the duty, of the court to decide it. In Martindale v. Martindale, Rockhill v. Nelson, and Longlois v. Longlois, supra, the question was presented in the same way, by the simple allegation that the widow owned the fee, and these causes were decided upon consideration of this allegation alone. the executor and ordered the sale of the | Case, without qualification, and held that the whole of the lands, subject only to an estate childless widow took only a life estate. In for her life in the widow in one-third thereof, Louden v. James, supra (1869), the court had had jurisdiction of the parties, and it is not said: claimed that it did not have jurisdiction of the general subject-matter. The facts presented called upon it to decide a question of law. The court responded and rendered its decision. Why were the parties not concluded? Daniels v. Bruce, 176 Ind. 151, 95 N. E. 569; State v. Wenzell, 77 Ind. 428; Perkins v. Hayward, 132 Ind. 95, 103, 31 N. E. 670; State ex rel. Egan v. Wolever, 127 Ind. 306, 315, 26 N. E. 762; Myers v. Boyd, 144 Ind. 496, 43 N. E. 567. It cannot be pretended that the question presented for the decision of the court was "It is not attempted to reconcile the present decision with the broad language contained in the opinions in Martindale v. Martindale and Ogle v. Stoops, supra." Such attempt would have involved the logical difficulty of holding to-day, in a partition proceeding between heirs, that the widow inin a probate proceeding, it must be held that herited a life estate only, while to-morrow, she inherited a fee. No reconciliation was attempted in Longlois v. Longlois or Russell in 1876 the judge of the Howard circuit v. Russell, supra, and it is not surprising that not a substantial one. At that time it had court, and other judges, in proceedings to been decided by the Supreme Court in two sell decedents' real estate, held (as numerous ways. The opinions in some of the cases crit-ones did) that the second or subsequent icized, and were scarcely tolerant of, the childless widow inherited a life estate only. No doubt the decision was wrong. The case opinions in others. In the exact form in which it was presented by the petition of the of Louden v. James, supra, should have govexecutor, it had not been determined at all. erned the action of the court, notwithstandThe executor, as the representative of the ing Longlois v. Longlois, supra, but the powcreditors, was endeavoring to secure for them er to decide includes the power to decide all that the law would warrant. The ques- wrong, and an erroneous decision, at least on tion was: How much of the lands could they a colorable question, resists a collateral atreach? This question of law was submitted tack as firmly as does a decision correct in to the court for decision, in a proceeding to which all persons in interest were before the court, and in response to its plain duty the court decided it. law. The action of the court in ordering the executor to sell the lands involved the decision of these questions of law: (1) Did the children of Jacob Elliott have any present interest in the portion of the lands which descended to the widow? (2) What was the In Koepke v. Hill (1901) 157 Ind. 172, 60 N. E. 1039, 87 Am. St. Rep. 161, it was held that a judgment of conviction of a crime under an unconstitutional statute was not sub-nature and extent of that interest? And (3) ject to collateral attack. After noting the holding in some other jurisdictions, the court said: was the same subject to the lien of the credi tors? The court necessarily answered each of these interrogatories. It decided that the "In this state, however, the holdings have children owned the fee in the portion of the been to the effect that, whenever a court is land which descended to the widow, subject confronted with a question which it has a right only to an estate therein in her during her to decide correctly, its erroneous judgment will natural life; that the children became such not be subject to collateral attack, irrespective of whether the mistake of law concerned the owners by inheritance from their father, Jacommon, or statutory, or constitutional law." cob Elliott; and that their estate was subject Various authorities are cited with approv-to the lien of the creditors. al. Van Fleet, Col. Attack, § 75. See, also, In his work on Collateral Attack (section 66) Van Fleet says, regarding the question of jurisdiction: "The true rule seems to be that if the question is colorable, such as a person unskilled in the law might mistake, it will shield the decision from collateral attack." It cannot be said that in 1876 the question was not colorable. It was then fairly debatable. Even now, in the light of Utterback v. Terhune, 75 Ind. 363, and cases following it, counsel for appellant contend that Louden v. James, supra, was overruled by Longlois v. Longlois and Russell v. Russell, supra. When the latter cases were decided, another change in the personnel of the bench had occurred. The court followed the Martindale In point of law the widow's third part of the land was not subject to sale. It had descended to her "free from all demands of creditors"; and, in so far as creditors were concerned, she held the lands precisely as she would have held them if she had been the mother of the decedent's children. This is what the court should have decided. The proposition is plainer now than it was then, in view of the existing confusion in the decisions of this court. The court decided the matter by the use of such aid as it had, and erred in its conclusion; but it was a court; it had jurisdiction; the parties in interest were before it; and the question was presented. If there is any reason why the parties were not concluded by the order to sell, it is not a legal reason. The law concludes them, and it is with the law the court is dealing. Let us illustrate. A. is the owner in fee simple of a parcel of land. B., as the ad |