Habig et al. v. Dodge et al. and careful consideration, but we can find no error in the record which will authorize a reversal; on the contrary, the record shows that the case was well and fairly tried. Judgment affirmed. Filed Jan. 28, 1891. No. 14,400. HABIG ET AL. v. DODGE ET AL. DESCENT.-Childless Second Wife.-Interest of as Widow.--Forced Heirs.- SAME. Warranty by Heirs Apparent.--Where one of the children of the From the Gibson Circuit Court. C. A. Buskirk, T. R. Paxton, R. D. Richardson, J. T. Habig et al. v. Dodge et al. MITCHELL, J.-The facts upon which the decision in this case depends are undisputed. They show that Samuel Shannon died intestate, in the year 1857, seized of certain real estate in Gibson county. His widow, Louisa Shannon, a second wife, by whom he had no children, and two sons, William W. and Andrew, and a married daughter, Ophelia, children by a former marriage, survived him as his only heirs. As the result of a partition suit, instituted in 1858, what is alleged to be an estate for life in the real estate involved in this controversy, was set off to the widow, as part of the interest to which she was entitled under the statute, in the real estate of her deceased husband. In the same proceeding certain lands were also set off, in fee simple, to each of the other heirs. In 1860, during the lifetime of his stepmother, William W. Shannon, executed a deed, with covenants of warranty, whereby he conveyed, by proper description, the lands set off to him, to his brother Andrew. He also undertook, by the same deed, to convey his interest, or supposed interest, in the lands set off to his step-mother, which interest he described in the following language: "Also, all the reversionary right, title and interest, of the said William W. Shannon in and to sixty acres off the south part of said northeast quarter of said section numbered seventeen; all of said lands being in township numbered two south, range numbered ten west; also, the undivided third part of the south half of lot numbered thirty-three, in the original plat of the town of Princeton, in said county, subject to the dower of Mrs. Louisa Shannon, it being the intention to convey all the estate of said William W. Shannon, set off to him in partition of real estate of Samuel Shannon, deceased, in said sections, and his interest in the lands set off to said Louisa Shannon, as her dower in said partition." The deed contained the following covenants: "The grantors, their heirs and assigns, hereby covenanting with the grantee, his heirs and assigns, that the title so conveyed is free, clear, and unencumbered; that they are lawfully seized of the premises Habig et al. v. Dodge et al. aforesaid as of a sure, perfect, and indefeasible estate of inheritance, in fee simple, and that they will warrant and defend the same against all claims whatsoever." The appellant Paul Habig claims title to the interest of William W. and Andrew Shannon, in the lands set off to their step-mother through mesne conveyances from Andrew, who died intestate and unmarried in 1861, after receiving the conveyance from William W., and prior to the death of his step-mother. The appellant Stormont claims title through mesne conveyances from Ophelia Evans and her husband, to the supposed interest of the former in the land set off to her stepmother, the conveyance by Ophelia and her husband having been made in 1868, during the lifetime of the widow, her deed containing full covenants of warranty. Ophelia died in 1876, leaving Alice Dodge and three other children as her heirs. The widow, Louisa Shannon, died in 1884, and in 1886 William W., the only surviving child of Samuel Shannon, executed a second conveyance, upon a nominal consideration, by which he conveyed his interest in the land set off to his step-mother, to Wm. T. Turner, through whom the appellant John R. Green claims title to the undivided one-half of the tract in dispute. This suit was brought to obtain partition of the land in dispute by the children of Ophelia Evans, who claim the undivided one-half of the land set off to the widow of their grandfather, Samuel Shannon, their claim being that they take from the widow as heirs, notwithstanding the warranty deed of their mother. Habig, Stormont and Green were made parties. Upon the foregoing facts the court found that the plaintiffs were the owners of the undivided one-half of the land in controversy; that Green was the owner of an undivided one-third, and that Habig and Stormont were each the VOL. 127.-3 Habig et al. v. Dodge et al. owners of an undivided one-sixth. Habig, Stormont and Green prosecute this appeal. It may be observed that by the express terms of section 4 of the act of March 11th, 1889 (Elliott's Supp., sections 423-426), the provisions of this latter act do not apply to any case where the second childless wife had died, and the estate had become vested in the heirs of the deceased husband before the act took effect. The controversy is to be determined, therefore, according to the statutes in force in 1884, when Louisa Shannon died, and the interest or estate of her heirs, the children of her deceased husband became vested. It must now be regarded as settled by the decisions of this court, that, under the statute which controlled the judgment in the present case, one-third of the real estate of which a husband died seized descended in fee simple to his widow, free from all demands of creditors, without regard to whether she was the first or second wife, provided, however, if she were a second or subsequent wife without children, there being children alive by a previous wife, the descent of the land which at the husband's death vested in fee simple in his widow, was absolutely restricted to his children. The estate which a widow took in the lands of her deceased husband was precisely the same whether she was a first or second wife, the only distinction being that the statute in certain cases controlled the line of descent, so that in case of a second or subsequent childless wife, the living children of the deceased husband by a former wife, became by compulsion of law the heirs of the second wife at her death, and inherited the lands which the statute cast upon her at the death of her husband. The policy of the law lies upon the surface of the statute, and its eminent justice and propriety are apparent. It was intended, while accomplishing ample justice to the childless widow, to prevent the possibility of the estate, which presumably the first wife had assisted in acquiring, being cast by inheritance, or otherwise, upon persons who Habig et al. v. Dodge et al. might be strangers to her blood, as well as the blood of her husband, to the exclusion of their children whose industry and frugality may have contributed to the acquisition of the property. The decisions of this court, accepting the statute according to its evident purpose and policy, have settled it firmly as anything can be settled by judicial determination, that the childless widow took an interest equal to the undivided one-third in fee simple in her deceased husband's real estate, and that during her lifetime the children of her husband had no vested estate in the property which descended to her; that they occupied precisely the attitude of other expectant heirs toward the property of their ancestor, except that the ancestor, the childless widow, had no power to defeat the expected inheritance. The question has arisen in almost every conceivable shape, and the rulings uniformly are, that during the lifetime of the widow the husband's children have no interest which can be affected by any order or judgment of a court, nor by a conveyance made by them nor by their guardian, unless it contain covenants of warranty or their equivalent, pursuant to an order of court. Gwaltney v. Gwaltney, 119 Ind. 144; Erwin v. Garner, 108 Ind. 488; Thorp v. Hanes, 107 Ind. 324; Avery v. Akins, 74 Ind. 283; Bryan v. Uland, 101 Ind. 477, and cases cited. This is upon the principle which prevails almost universally that judgments affecting the title to real estate, and conveyances without covenants, are ordinarily confined in their operation to the interest held by the parties to the suit or grantors in the deed at the time the judgment is pronounced or conveyance executed, and affect only existing titles and not those subsequently acquired. Freeman Cotenancy and Part., section 532. Something has been said about the conflict between the earlier and the later decisions of this court, which define the interest which a childless second wife takes, or took, under the statute in the real estate of her deceased husband. There |