*573On Petition for Rehearing.
Wiley, J.Appellants have petitioned for a rehearing npon the following grounds: “(1). In holding that under our law of descent, and th^ decisions of our courts on the facts averred in the complaint, and the statutes relating thereto, the title to the real estate in question vests in the appellee; (2) that in this case it was the duty of the court to take judicial notice of the law of descent in Indiana, and the changes therein, if any, by the legislature of -Indiana, with the construction of the higher courts thereon, which have been entirely ignored, and have not been considered or referred to in disposing of this important case.”
While the second ground stated in the petition does not present any question for consideration, we will consider the petition as a whole, for the reason that it is charged that the court did not consider or refer to certain questions presented by the record.
The single question in this appeal, as stated in the opinion, is the sufficiency of the complaint, which involves the relative rights of the appellants and appellee, to inherit from Jesse W. Smelser, deceased. Appellants base their right to share in the real estate of the deceased upon the following statutes: “If- there be neither father nor mother, the brothers and sisters of the intestate living, and the descendants of such as are dead, shall take the inheritance as tenants in common.” §2625 Burns 1901. “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.” §2640 Burns 1901. Both of the above provisions of the statute were parts of the law of descent as enacted by the legislature of 1852. Section 2651 Burns 1901, which is quoted in the original opinion, and upon which it was held that the appellee took the entire estate, was also a part of the act of 1852. By that pro*574vision of the statute, the widow, when no child, father, or mother survived, takes the entire estate. This latter section was amended in 1853 to read as follows: “If a hus- \ band or wife die intestate, leaving no child, and no father or mother, nor brothers and sisters, nor their descendants, the whole of his or her property, real or personal, shall go to the survivor.”
In their brief, counsel for appellant say that the last-quoted statute remained in force for fourteen years, and until the passage of the act of March 9, 1867 (Acts 1867, p. 204). Counsel also admit that since that date there have been numerous decisions of the Supreme Court holding that the act of March 9, 1867, repealed the amendatory act of 1853, and that by such repeal the original act was revived. By this admission, counsel concede the rule of law declared in the original opinion to be correct under the authorities, but insist that we should declare a new rule. This we can not do. The following cases sustain the proposition that the act of March 9, 1867, repealed all laws not passed in conformity with the rule declarded in Langdon v. Applegate, 5 Ind. 327, and that the repealing act of March 9, 1867, revived §26 of the act of 1852, being §2651 Burns 1901. Leard v. Leard, 30 Ind. 171; Nebeker v. Rhoads, 30 Ind. 330; DeMoss v. Newton, 31 Ind. 219; Lindsay v. Lindsay, 47 Ind. 283; Longlois v. Longlois, 48 Ind. 60; Waugh v. Riley, 68 Ind. 482; Teter v. Clayton, 71 Ind. 237; Helt v. Helt, 152 Ind. 142. See, also, Baum v. Thoms, 150 Ind. 378, 65 Am. St. 368. Under these authorities §26 of the act of 1852 (§2651 Burns 1901) was in force at the time of the death of Jesse W. Smelser, and by it the appellee, as his widow takes the entire estate, both real and personal. Sections 2625 and 2640, supra, were also in force at the time of his death, but they are not of controlling influence here, because they-are not applicable to the facts disclosed by the complaint.
*575Tlie death of appellant Elizabeth Ross having been suggested, the original opinion is modified in that the judgment of affirmation is rendered as at the term at ‘which the cause was submitted in conformity with the provisions of §675 Burns 1901.
Petition for rehearing overruled.