This suit was brought for the partition of real estate.
The appellee alleges in his complaint, that he is the owner ' in fee of certain real estate situate in Hendricks county, and particularly described in the complaint; that the land was owned by one William O. Parker, against whom the State of Indiana, on the relation of Albert A. Barnes, obtained a judgment in the Hendricks Circuit Court; that an execution was duly issued on said judgment, directed to the sheriff of said county and by him duly levied upon the land described in the complaint, and that, on the 18th day of August, 1877, said sheriff, by virtue of said execution and levy, duly sold said land at public sale to the said Barnes, and delivered to him a certificate of purchase for the same; that said Barnes assigned and transferred said certificate to the appellee, and that, said land not having been redeemed from said sale within the time allowed therefor by law, the said sheriff duly conveyed the same to the appellee; that Elizabeth Parker, one of the appellants, -was .then and is still the wife of the said William O. Parker; that she was not a party to nor bound by the judgment upon which said land was sold; but that she is the second wife of the said William O. Parker, and has no child by him, and is now beyond the age and period of life at which it is possible for her to bear or have children, but that the said William O. Parker has children living by a former wife, now deceased, who are made parties defendants; that William O. Parker and Elizabeth Parker are still in possession of said premises, and have held possession of the same ever since said sale was made by said sheriff to said Barnes, and have received the rents thereof, which were worth $500. It is also stated that Elizabeth Cay wood, Julia Hufford,- John A. Hufford, John W. Parker, Jacob Parker, Henry L. Parker and Israel Hendrickson, as the appellee is informed and believes, claim to have and assert some right in or title to said land, which constitutes a cloud upon his title thereto. The appellee prays that he may be declared the owner in fee of said land, subject *522only to the life-estate of the said Elizabeth Parker in one-third part thereof; that one-third part of said land in value may be set off to the said Elizabeth Parker for and during her life, and two-thirds thereof to him, and that his right to the one-third thereof, after the death of the said Elizabeth Parker, be declared. The defendants were all served with process.
The appellee Elizabeth Parker appeared and moved the court to strike out portions of the complaint. The motion was overruled. The other defendants, except William O. Parker and Israel Hendrickson, also appeared and moved the court to strike out portions of the complaint; this motion was also overruled.
The defendants William O. Parker and Israel Hendrickson made default. The other defendants demurred to the complaint; the demurrer was overruled.
The appellants, Elizabeth Parker, Elizabeth Caywood, Julia Hufford, John W.Parker, Jacob Parker and.Henry L. Parker, filed an answer in one paragraph, alleging that the said Elizabeth Caywood, Julia Hufford, John W. Parker, Jacob Parker' and Henry L. Parker are children of the defendant William O. Parker by a former -wife, now deceased, and that the defendant Elizabeth Parker is now the second wife of the said William O. Parker; and they pray the court to order and decree upon the final hearing of said cause, that one-third in value of the land described in the complaint be assigned and set apart to the said Elizabeth Parker during her life, and at her death to go in fee simple to the defendants Elizabeth Caywood, Julia Hufford, John W. Parker, Jacob Parker and Henry L. Parker, as the children of said William O. Parker.
To this answer the appellee replied, denying all the allegations therein inconsistent with the averments of the complaint.
The cause was submitted to the court for trial; the court found that the appellee was the owner in fee of said real estate, subject only to to the life-estate of Elizabeth Parker, the widow of William O. Parker, in one-third thereof, and against *523the other appellants. The court adjudged that partition of the land he made pursuant to its finding; that one-third thereof in value be set off in severalty to said Elizabeth Parker for life, and that the other two-thirds be set off to the appellee; that he was entitled to the immediate possession of the same, and to the possession of the one-third to be set off to said Elizabeth Parker upon her death. Commissioners were appointed, who reported that they had made partition, etc., which report was duly acknowledged and approved and confirmed by the court.
The appellants moved for a new trial; the motion was overruled.
The rulings of the court upon the motions to strike out parts of the complaint, the overruling of the demurrer to the complaint, and the overruling of the motion for a new trial, are assigned as errors.
The counsel for the appellants say: “ Under the errors assigned, the only question in the case is, what interest under the law does a purchaser at sheriff’s sale, having received a deed, take in the land of a married man as against the wife of such married man, where that wife is one with no children by him, there being children alive by a former wife, and as to what such purchaser takes as against such children ? ”
The act of 1875, upon the sale of the interest of William O. Parker in the land described in the complaint, gave to his wife, Elizabeth Parker, the same interest, as against his creditors, that she would háve taken in the land had he died at the time of the sale. What wrould she have taken as against the creditors of William O. Parker had he then died? The language of this court, per Fjrazer, J., in the case of Louden v. James, 31 Ind. 69, answers this question fully and satisfactorily. The court say, after referring to the case of Martindale v. Martindale, 10 Ind. 566, and Rockhill v. Nelson, 24 Ind. 422:
“ But the question now here is altogether different. It is not, what does the widow take as against children of the in*524testate ? but it is, what does she take as against his creditors ? The statute answers this question so plainly and expressly that there seems to be no room for construction. ‘ If a husband die testate, or 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, sec. 17. And then the language of the proviso to the 24th section is equally plain, that this fee simple which, as agáinst creditors, the second wife without children takes on the death of her husband, ‘shall at her death descendió his children.’ Language so plain can not be disregarded. That construction which attempts to make words mean what they plainly do not import, is but another name for a judicial invasion of that domain in the government of the State which the constitution has, in the clearest terms, confided exclusively to the legislative department. That it was -intended by the statute to put beyond the reach of general creditors one-third in fee simple of the real estate (not exceeding ten thousand dollars) of a decedent leaving a surviving widow, can hardly be a debatable proposition. That of this third the childless second wife took only an estate for life as against children of a former marriage, was a conclusion deduced altogether from the provision that upon her death that land should go to the children of the deceased husband. The further conclusion, now sought to be drawn, that upon the death of the wife it shall be liable to sale for the payment of the husband’s debts, does not follow — indeed, it is utterly inadmissible, and would be in palpable violation of the express words of the statute.”
We adhere to this decision as a sound exposition of the law. Conceding, what will hardly be denied, that it is competent for the Legislature to give to the second or subsequent wife, having no children, one-third of her husband’s real estate in fee, and to constitute the children of the deceased husband her heirs as to such land, the conclusion reached by Judge Fkazeb seems to be unavoidable.
We are referred to the case of Hendrix v. Sampson, 70 *525Ind. 350, as settling the law upon this subject the other way. The facts in this case are not quite the same as in the case before us. The land had been sold and conveyed in the lifetime of the husband upon an execution against him, and prior to the act of 1875, The surviving widow brought an action for partition against the purchaser, alleging that upon the death of her husband she took, under section 27 of the descent law, 1 R. S. 1876, p. 413, one-third of the land in fee simple. It was held by a majority of the court, Worden and Niblack, JJ., dissenting, that she did not, as against creditors, take a fee, but a life-estate only. In the case now before us, by. virtue of the statute of 1875, Mrs. Parker takes just as she would had William O. Parker died the owner of the land at the time the sale was made. She must, therefore, be deemed to have taken under section 17, which expressly declares that, as .against creditors, she shall take a fee simple,, free from their claims, and not under section 27, which contains no such express declaration. The cases are not necessarily in conflict. We are not disposed to extend the latter so as to embrace the ■question now before us. We think the judgment below should be reversed. Armstrong v. Cavitt, 78 Ind. 476.
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment below be reversed, at the costs of the appellee.