I concur. The right of the wife under section 2826 is contingent only upon her surviving her husband. If she survive him, her rights are fixed and absolute. Under that section she does not take as an heir, but as a surviving widow of the husband, and he is powerless either to deny or to limit her rights by will or otherwise. Nor is she limited in her rights under that section to such real estate as the husband dies seised of, but she is entitled to “ one-third in value of all the legal and equitable estates in real property possessed by her husband at any time during the marriage, and to which the wife has made no relinquishment of her rights.” Moreover, what is here given to the wife, the statute says, ‘ ‘ shall be free from all debts of the decedent, except those secured by mechanics’ or laborers’ liens for work or labor done or material furnished for the improvement of the same, and except those contracted for the purchase thereof, and for taxes levied thereon. ’ ’ The taxes here referred to are taxes levied on the husband’s property before the wife’s interest is set off. This of itself lends strong color to the claim that under said section the wife does not take as an heir. An heir, usually, can succeed only to that of which the intestate died seised or possessed in his own right, or in which he had an interest— that is, to- what he owned at the time of his death; and all of the heir’s claims are subject to the debts of the decedent. Under section 2826 the wife takes her full interest, although the husband had fully disposed of his interest during his *105lifetime, and takes it “free from all debts,” except those before stated. When the Legislature, therefore, adopted the-statute by which a tax upon all property “which shall pass by will or by the statute of inheritance” was imposed, the wife’s interest in the husband’s real estate under section 2826 was, manifestly, not included in view of the terms of the statute. This being so, the courts should not attempt to include it by construction. As pointed out by Mr. Chief Justice STRAUP, in his opinion, statutes imposing such taxes are, as a rule, strictly construed. Where, as here, the tax is not one which is controlled by our Constitution, but is special, it is for the Legislature to say to what extent and upon what property it shall become operative.
The judgment of the District Court, as I view it, clearly follows the provisions of the statute', and must therefore be affirmed.